AKEEM RAMONI v. THE STATE
(2016)LCN/8215(CA)
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; THE DEFINITION OF CONSPIRACY
In the case of Olusegun Haruna & Ors v. The State (1972) 8/9 SC 174 pages 200-201 the apex court defines Conspiracy as follows: “Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the southern states) but since the common law is in force in Nigeria the word must bear the same meaning as in England. It means, under the common law an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties, promise against promise actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means (See Archbold 37th Edition Para 4051). In short, it is the agreement to do an act where it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.”
See also the cases of Oyediran v. The Republic (1967) NMLR 122 at 127/8 and The State v. Ademola Bello & Ors (1989) 1 C.L.R.N. 370. Simply put, Conspiracy is an agreement between two or more persons to do an unlawful act – See Chanugo & Ors. v. The State (2001) FWLR (Pt. 74) 242 at 25. Unlawful or criminal object of agreement between two or more persons to perpetrate an act can sustain a conviction once proved to be the itinerary/initiative between two or more persons. Conspiracy can be proved by direct evidence or inference to be drawn from criminal act of parties so accused done in pursuance of an apparent criminal purpose in common. See Balogun v. A-G Ogun State (2001) 1144 at 1154. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT THE PROSECUTION MUST PROVE
For an offence of conspiracy the prosecution must prove –
(i) There is an agreement of two or more persons.
(ii) The agreement is to carry out an unlawful act or lawful act in an unlawful way. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
CRIMINAL LAW: THE DEFINITION OF ATTEMPTED MURDER
Foremost, Attempt has been defined in Section 4 of the Criminal Code as follows:
The commission of an offence involved four stages:
(1) Intention
(2) Preparation
(3) Attempt
(4) The commission of the offence itself”.
In the Black’s Law Dictionary, Sixth Edition, an ‘Attempt’ ordinarily means an intent combined with an act falling short of the things intended. It may be described as an endeavour to do an act, carried beyond mere preparation, but short of execution. In the case of Yakubu Ibrahim v. The State (1995) 3 NWLR Pt.381 35 at 45 – 46. Pats Acholonu JCA as he then was and of blessed memory said thus:
“The actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of a specific crime. See Davey v. Lee (1968) 1 D.B. 366 D.C. Where the act concerned is equivocal, the intention of the defendant is relevant to see to what end the act was directed. When that is decided it still remains for the prosecution to know that the act itself was sufficiently proximate to the crime which the defendant intended to commit to amount to an attempt”.
Section 320 of the Criminal Code Law (Cap 29) Vol. II Laws of Ogun State of Nigeria 1978 provides-
“Any person who
(1) Attempts unlawfully to kill another or
(2) With intent unlawfully to kill another does any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger … life is guilty of a felony.
The appellant was convicted under subsection (1) of the Code”.
It is the requirement of the Constitution that every person charged with a criminal offence shall be presumed innocent until he is proved guilty.
The burden of proof is placed on the prosecution, misgiving, doubt, distrust, inkling, wariness or feeling are not enough to discharge the burden of proof on the prosecution. What the law requires is sufficient trace inculpating the accused. From the foregoing therefore it is suffice to say that there is no question that the established principle in all criminal cases tried by any court is that the prosecution must establish the guilt of the accused beyond reasonable doubt upon the established evidence before the trial court. In other words, the burden on the prosecution never shifts. See the case of Amala v. The State (2004) 6-7 SC 105. It is after the commission of a crime by a party is directly in issue in any proceeding that the application of Section 138 (1) of the Evidence Act (Standard of Proof/Proof Beyond Reasonable Doubt) would come to play. See the case of Arowolo v. Ifabiyi (2002) 2 SC (Pt. 1) 71. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
DUTY OF THE POLICE TO INVESTIGATE; WHETHER IT IS THE DUTY OF THE POLICE TO INVESTIGATE AN ALIBI AND THE IMPLICATION OF THE FAILURE OF THE POLICE TO INVESTIGATE
The law is clear and very trite that the police has a duty to investigate an alibi when timeously raised before trial by an accused person. Where the police fail to investigate, it is settled that it is tantamount to an admission by prosecution and raised a reasonable doubt in the mind of the judge. The doubt he argued should be resolved in favour of the Appellant and leads to his acquittal. He referred to Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 1 at p.27, Ozulonle v. The State (supra) and Onuchukwu v. The State (1998) 4 NWLR (Pt.547) 576 at p.592. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of December, 2014
CA/I/183/2013
JUSTICE
HARUNA SIMON TSAMMANI justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI justice of The Court of Appeal of Nigeria
Between
AKEEM RAMONI – Appellant(s)
AND
THE STATE – Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Abeokuta Judicial Division delivered by Hon. justice P.A. Onamade on 23rd January 2013 in Suit No. AB/22C/2008. Convicting the appellant on a two count charge of Conspiracy to murder and Attempted murder and sentencing him to a prison terms of 14 and 21 years with hard labour respectively. Dissatisfied with the judgment hence this appeal.
Succinctly, the fact of the case leading to this appeal is that on the 25th day of July 2004, at about 4 pm the victim Alao Fashola (PW1), a security man at the Quarry site of Obasanjo Holdings Limited at Odeda in Abeokuta, Ogun State while on routine patrol saw the appellant and other 4 now at large with drilling iron called bits belonging to his employer. He accosted them. Two of the culprits sped off while the remaining three, the appellant started begging him. The victim, (PW1) knew the appellant because they leave in the same area Odeda and that the father of the appellant worked together before. The appellant therefore is well known to him, The victim was about to walk away when suddenly the accused and his cohort descended on him from his back, matchetted his hand and struck him severally with the matchet on the head mouth and body. The victim fell and was left in agony. The assailants left believing the victim has given up the ghost. The colleague of the victim started searching for him when they did not see him returning from the patrol. They contacted his relations who said they have not seen him. The search for the victim continued till 26th July 2004 when he was found in the bush within the Quarry. At that time he could not talk and there was blood all over his body and in a state of coma. With the help of the police with whom the company had earlier lodged a complaint took the victim (Alao Fashola) to General Hospital. After a period of about six months the victim was able to make statement with the aid of his wife. His statement was recorded and by that he took the police to the residence of the father of the appellant.
The said father who is late at the time of the trial in the court below took the police to where the appellant resides. According to PW3, immediately PW1, the victim sighted the appellant he ran to him and held and identified him as one of his assailants. The appellant was apprehended, detained and charged to court after conducting a search in his residence and his statement was recorded.
The appellant was arraigned on the following two count charge.
They are:-
Count 1.
Conspiracy to murder contrary to Section 324 of the Criminal Code (Cap 29) Vol. 11, Laws of Ogun State of Nigeria.
Count 2
Attempt to murder contrary to Section 320 (1) of the Criminal Code (Cap 29) Vol. 11 Laws of Ogun State of Nigeria 1976.
The trial commenced in 2005 before Hon. justice O.A. Ogundepo. Consequent on the demise of the said judge, the trial commenced de novo before Hon. justice P.A. Onamade who at the end found the appellant guilty, and sentenced him to the said terms of imprisonment. Against the said sentence hence this appeal.
The appellant denied being a member of the gang or participated in the ordeal the victim went through. His defence squarely is that of “Alibi”.
He called his wife and brother to testify to that. He agreed knowing the victim (PW1) and that pw1 and his father had worked together before.
The original Notice of Appeal was filed on 11/04/2013. Upon hearing of the motion on notice by the appellant dated 05/02/2014 and filed on the 6th day of February 2014, the appellant was granted leave to amend his notice of appeal on the 14th day of April, 2014 and hence the amended notice of appeal containing six (6) grounds dated 05/02/2012 filed on 6th/2/2014 was deemed as being properly filed and served on the 14th day of April 2014.
I reproduce herein under the six (6) grounds but without the particulars.
Ground One
The decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
Ground Two
The learned trial judge erred in law by convicting the appellant of the offence of attempted murder on ground that same was proved beyond reasonable doubt when the prosecution failed to prove its case beyond reasonable doubt.
Ground Three
The trial court erred in law when it convicted the appellant of the offences of conspiracy and attempted murder by an unsigned judgment.
Ground Four
The learned trial judge erred in law when he held thus:
“Now let us consider the alibi put up by accused.
The accused testified and called two witnesses, the accused put up the defence of alibi that he was at home on the day of the incident. He gave his address as No. 58 Oja Agbo, Agura Road Abeokuta.
But in his statement to the police, Exhibit ‘C’ and ‘C2’ he gave his address as No. 3 Gbagura Road, Oja Agbo Abeokuta.
The 1st D.W. Wasiu Ramoni, brother to the accused who testified that on the date of the incident, the accused with whom he was living in the same house, was at home throughout that day. But he gave their address as No. 158 Agura Road Agoka, Abeokuta, and the 2nd D.W. Deborah Ramoni, wife of the accused, also testified that the accused was at home throughout on July 2004. However, she gave the address of that home as No. 58 Agura Road, Oja Agbo Abeokuta.
From the above, can the accused be said to have put up a good alibi when he gave No. 158 Agura Road, Abeokuta, No 3 Gbagura Road, Oja Agbo, No. 58 Agura Road and No. 158 Oja Agbo, Agura Road as the place where he was on the date of the incident? Of course “no”. That defence therefore collapsed and cannot be a good alibi in law.
Ground Five
The trial court erred in law by rejecting the alibi forward by the appellant when same was never shown to have been investigated by the police who had ample opportunity to do so.
Ground Six
The learned trial judge erred in law in convicting the appellant of the offence of conspiracy to murder when he held as follows:
“The gist of the offence of conspiracy lies, not in doing the act or effecting the purpose for which the conspiracy is formed but in the forming of the scheme or agreement between the parties. See Majekodunmi v. The Queen 14 WACA 64 at 66.
In the case under consideration however, it got to the stage of doing the act.
However, from the evidence the conspirators had no plan of going to murder or attempting to murder. Their plan was simply to steal within the premises of Obasanjo Quarry. If the victim had not caught them within the premises of the Quarry they would not have gone for him. So their act was spontaneous for the reason that the victim was able to identify one (sic) them. And in order to cover up their act of stealing within the premises, the security man was attacked and they left for dead I therefore have no hesitation than to conclude that the offence of conspiracy succeeds a (sic) it was proved beyond reasonable doubt and the accused is hereby found guilty if (sic) that offence”.
In obedience to the rules of this court, respective counsel for the appellant and the respondent filed and adopted their Brief of Argument. The appellant’s brief of argument dated 14/02/2014 was filed on the 14/4/2014 consequent upon the order of the court granted on 74/4/2014. Therein he formulated the following three issues for determination:
(1) Whether the absence of signature on the judgment of the trial court did not invalidate it.
(Ground 3 of the amended Notice of Appeal).
(2) Whether the prosecution discharged its burden of proof of this case beyond reasonable doubt (Grounds 1 and 2 of the Amended Notice of Appeal).
(3) Whether the trial court was right in rejecting or refusing the appellants alibi (Grounds 4 and 5).
In response, the learned DDPP Ogun State representing the respondent, in his adopted brief of argument dated 15th October 2014 and deemed filed on 3rd November 2014 by the order of this court adopted the following issue formulated by the appellant but with moderation.
(1) Whether the prosecution has established the offence of conspiracy to murder and attempted murder against the appellant beyond reasonable doubt.
(2) Whether the trial judge was right in rejecting the appellant’s alibi.
Let me quickly put on record that the learned counsel representing the appellant on the 3rd day of November 2014 before he adopted his brief of argument sought leave to withdraw his argument on issue number one distilled from ground of appeal number 3. The respondent has no objection to same. The said issue number one and ground 3 contained in the amended ground of appeal are hereby struck out.
By the foregoing therefore the appellant is now left with two issues for the determination of this appeal. They are issues 2 and 3 and grounds 1, 2, 4, 5 and 6, contained in the amended notice of appeal.
I have carefully read the submission of the respective counsel in their adopted written brief of argument and the evidence tendered before the trial court and the judgment of the learned trial judge thereto, I would therefore proceed first in my consideration with issue number 2.
Issue 2
Whether the prosecution discharged its burden of proof of this case beyond reasonable doubt (Ground 1 and 2 of the amended notice of appeal.
Somewhere before this stage, I have reproduced grounds 1 and 2 from the amended notice of appeal, therefore, I see no need in reproducing same again. However same cannot be said of the particulars. I herein below set out the particulars. The appellant’s counsel did not set out any particulars for ground one but for ground two. I herein below reproduce the particulars to ground 2. They are:-
(1) The appellant was not arrested or caught at the scene of the crime.
(2) There were no eye witness account of how the crime was allegedly committed.
(3) The only evidence against the appellant was that of the victim himself, Alao Fasola, whose evidence is utterly unreliable given that he suffered from severe loss of memory as a result of the injuries inflicted on him when he was attacked on 25th July, 2005 at the Obasanjo Holdings Limited Quarry Odeda.
(4) According to PW3 loss of memory, as a result of neurologic deficit is a natural consequence of the type of injuries sustained by the victim.
(5) The victim was unconscious for several weeks after the attack on him and even had speech disability after becoming conscious.
(6) It is not in dispute that the victim, Alao Fasola knew the appellant before the attack of 25th July 2005, the later being a child of the victim’s colleague at the Quarry.
(7) There is the possibility that given his loss of memory, a known person in this case the appellant became the action’s candidate when asked if he could identify the person who attacked him.
(8) There was no account or record of any stolen bits at the Quarry on or about the 25th July 2004 to buttress the account of the victim that the appellant and some persons stole and were carrying away bits when he saw them.
(9) With the victim’s state of health at the time he allegedly identify the appellant as the person who attacked him, it is doubtful if any reliance ought to have been accorded his identification.
The argument of the learned counsel representing the appellant on this issue is that the basic reaction of the constitution of the Federal Republic of Nigeria and a fundamental guiding principle for or in the conduct of criminal trials in Nigeria is that an accused person is presumed innocent until his guilt is proved. He relied on Section 36(5) of the Constitution. He added that a necessary concomitant of this guiding principle is the requirement under our criminal justice system, that the prosecution must prove its case against an accused person beyond reasonable doubt, in order to secure conviction of the latter. He cited Section 138 (1) (2) and (3) of the Evidence Act Cap E12 Laws of the Federation 2004 and Section 135 (1) (2) and (3) of the Evidence Act 2011 also the cases of Ochiba v. The State (2011) 17 NWLR (Pt.1277) 663 at pp 685 paras A-B, 688, paras C-E, 691, paras E-F, 693-594 paras H.A, Nwosu v. The State (1998) 8 NWLR (Pt. 562) 433 at P. 444 para B, Akalezi v. The State (1993) 2 NWLR (Pt.273) at p.13 and Chukwu v. The State (2007) 13 NWLR (Pt. 1052) 430 at pp. 456-457.
Further to this he said the ingredients of the offence of conspiracy to murder are:
(i) There is an agreement of two or more persons.
(ii) The agreement is to carry out an unlawful act or lawful act in an unlawful way.
The agreement required here he submitted need not be in writing but can be inferred from what each participant in the criminal venture did in furtherance of the offence. He relied on the cases of Oyakhere v. The State (2005) 15 NWLR (Pt. 947) 159 at P. 160. Shodiya v. The State (1992) 3 NWLR (Pt. 230) 457 at p. 499 and Obiakor v. The State (2002) 6 SC (Pt. 11) 33 at pp.39-40/(2002) 10 NWLR (Pt.776) 612.
Referring to pages 127-128 of the record and the finding of the learned trial judge on the offence of conspiracy, he submitted that the learned judge somersaulted and concluded as follows:
“I therefore have no hesitation to conclude that the offence of conspiracy succeeds a (sic) it was proved beyond reasonable doubt and the accused is hereby found guilty if (sic) that offence”.
He submitted that the learned trial judge having found that there was no agreement or plan to commit murder or attempted murder, it was no longer open to the trial court to embark on the issue of conspiracy to murder let alone finding the appellant guilty of conspiracy to murder.
On the offence of attempted murder he submitted that the prosecution must prove that it was none other than the appellant who attempted to murder or kill Alao Fasola on 25/7/2004. The appellant he said was not arrested or caught at the scene of the crime and there were no eye witness account of how the crime was allegedly committed. The only evidence against the appellant is that of the victim. After quoting copiously from the deposition of PW1, the victim, he opined that there is a palpable contradiction in the evidence of the victim when in one breath he said he saw the appellant running and in another he said 2 of the appellant alleged accomplices ran away while the appellant and two other remained.
This material contradiction ought to be resolved in favour of the appellant.
He referred to Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 at p.464 para A-B, Augustine Onuchukwu & Ors. v. The State (1976) 9-10 SC 305 at p.325, Clark v. The State (1986) 4 NWLR (Pt.35) 381 at pp.384-385, Offorlete v. The State (2000) 12 NWLR (Pt.681) 415 at P.434 para F,436 para H.
He further argued that PW1 never saw the appellant with any machete, and that he was attacked after he turned his back. All he said was that he caught the appellant with 7 bits.
Apart from the foregoing he pointed to what he consider as contradictory evidence in the testimony of the medical doctor (PW2) on the number of people who attached PW1 as against the testimony of PW1 that it was the appellant that attacked him. Also he described the conclusion of PW4 Sg. Bayo Adaran on how the victim (PW1) was attacked as hear-say which contravenes Section 77 of the Evidence Act 2011. He referred to the case of Ekpo v. The State (2001) 7 NWLR (Pt. 712) 292 at p. 304 para E; Awuse v. Odili (2005) ALL FWLR (Pt. 261) 248 at p.320 Para F-H. 321, paras C-D.
On the issue of missing bits, he said there is no evidence of any missing bits and there was no bit found with the appellant or anybody. He referred to page 59 of the record.
On the evidence of PW3, he submitted that it is of no value and the court should not place any evidential weight on it. Out of all the witnesses of the prosecution, only PW1, the victim testified to what transpired at the venue. PW1’s evidence should not be relied upon particularly as it regards the identification of the appellant having regard to the fact that he suffered severe loss of memory as a result of the injury inflicted on him.
On the evidence of the appellant’s relocation and attempt to run, he submitted, are not circumstantial enough to stick a label of attempted murder on him. At very best it can only fuel suspicion. Suspicion no matter how grave cannot ground or form the basis for conviction. He relied on Obiakor v. The State (2002) 6 SC (Pt. 11) 33 at pp.39-40.
Finally he urged the court to find that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt in other words, the prosecution failed to prove that the appellant was the one who attempted to kill Alao Fashola and to hold that the trial court fell into severe error when it found that the prosecution proved its case beyond reasonable doubt against the appellant. The issue he submitted should be resolved in favour of the appellant and against the respondent.
Opposing the foregoing, submission Mr. J.K. Omotosho Esq., learned Deputy Director of Public Prosecution of Ogun state argued that the offence of conspiracy can only be inferred from the circumstances of each case and that the trial judge was right to have inferred same having drawn inference from the acts of the appellant and other accused persons now at large. The victim (PW1) stated how he saw five persons including the appellant on the 25th July 2004, and that two of them escaped remaining three and that the remaining three including the appellant hit and matcheted him. He referred to page 58 of the record. He cited the cases of Nwosu v. State (2004) 15 NWLR (Pt. 897) page 48G para F-H, Kaza v. The State (2008) 5 SCM 70 at 104; Upahar v. The State (2003) (Pt. 81) 6 NWLR pg. 230 at 239.
From the available evidence he submitted that the court can infer and imply the offence of conspiracy. Common intention he added is an important ingredient of the offence of conspiracy and the of which is whether the act complained of is a probable consequence of the point intention to carry out an unlawful act. He relied on Onyenye v. The State (2012) 1 SCM 118 at page 141-142 para F-I, A-C.
The matcheting and injuring of the victim is a probable consequence of the joint intention of the appellant and others now at large. He urged the court to hold that the trial court has rightly inferred the offence of conspiracy.
On the offence of attempted murder, he submitted that the Criminal Law and Procedure has not defined what constitutes attempted murder and that each case is decided on peculiar circumstance. What should be put into consideration are:
(1) Whether there was any act on the part of the appellant manifesting guilty intention.
(2) Whether the act of the appellant was merely preparatory or would the step already taken by him in order to commit that offence, if successfully carried out have resulted in the commission of the offence.
He referred to Nnagbo v. Cop (1976) NNLR 150.
Referring to the evidence of the victim (pw1) Alao Fasola contained on pages 57-62 and that of PW2 on pages 57-62 and that of PW4 on pages 64-67 of the record, those testimonies have shown that the appellant and others now at large attempted to kill the victim (Alao Fasola) as the appellant and others have taken step by matcheting the victim severally.
Also the evidence of PW4 which shed light as to how the appellant was arrested if put together shows that the victim knew who attacked him and that was why he reacted violently the first day he saw the appellant after the attack on him. He submitted that the appellant himself admitted knowing the victim before the date of the incident. He concluded that by matcheting the victim severally to the extent of sustaining such great injuries that impaired the speech mechanism of the victim, the appellant and others at large can be said to have attempted to kill the victim.
In the light of the foregoing submission for and against and the issue at hand, and coupled with grounds 1 and 2 of the appeal, and its particulars, the pertinent question is whether having regards to the evidence before the trial court it is reasonable to have convicted the appellant for the offences of conspiracy and attempted murder contrary to Section 324 and 320(1) of the Criminal Code (Cap. 29) Vol. 11 Laws of Ogun State of Nigeria 1978.
I would consider the offence of conspiracy first.
In the case of Olusegun Haruna & Ors v. The State (1972) 8/9 SC 174 pages 200-201 the apex court defines Conspiracy as follows:
“Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the southern states) but since the common law is in force in Nigeria the word must bear the same meaning as in England. It means, under the common law an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties, promise against promise actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means (See Archbold 37th Edition Para 4051).
In short, it is the agreement to do an act where it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.”
See also the cases of Oyediran v. The Republic (1967) NMLR 122 at 127/8 and The State v. Ademola Bello & Ors (1989) 1 C.L.R.N. 370.
Simply put, Conspiracy is an agreement between two or more persons to do an unlawful act – See Chanugo & Ors. v. The State (2001) FWLR (Pt. 74) 242 at 25. Unlawful or criminal object of agreement between two or more persons to perpetrate an act can sustain a conviction once proved to be the itinerary/initiative between two or more persons. Conspiracy can be proved by direct evidence or inference to be drawn from criminal act of parties so accused done in pursuance of an apparent criminal purpose in common. See Balogun v. A-G Ogun State (2001) 1144 at 1154.
Bearing the foregoing in mind I would now proceed to examine the evidence of the prosecution before the lower court visa vis the finding of the learned trial judge on the offence of conspiracy against the appellant.
For an offence of conspiracy the prosecution must prove –
(i) There is an agreement of two or more persons.
(ii) The agreement is to carry out an unlawful act or lawful act in an unlawful way.
The prosecution evidence regarding this is that of PW1 the victim and that of PW2 the medical doctor in the main and that of the IPO on the other. The victim, Mr. Alao Fasola who is PW1 in his oral testimony before the court said:
“I remember 25 July 2004. I was at my duty post at Obasanjo Quarry. At about 4.00 pm I was on patrol I saw the accused running away. I was there on a bicycle which I was riding, I saw five people including the accused. Two of them ran away while the other three could not escape including the accused. The accused had with him a box. This box in it a drilling irons, they are called bits. There were 7 bits in the box. The accused opened the box and brought out the bits. He brought them out when I insisted that I wanted to see the content of the box. The accused then started to beg me because of the bits that I saw with him. The bits belong to the Obasanjo Quarry…”
(See pages 57-58 of the record)
Based on the foregoing the trial court on pages 127-128 said;
“The gist of the offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed but in the forming of the scheme or agreement between the parties. See Majekodunmi v. The Queen 14 WACA 64 at 66.
In the case under consideration however, the stage passed that of forming of the scheme. It got to the stage of doing the act.
However, from the evidence the conspirators had no plan of going to murder or attempting to murder. Their plan was simply to steal within the premises of Obasanjo Quarry. If the victim had not caught them within the premises of the Quarry they would not have gone for him. So their act was spontaneous for the reason that the victim was able to identify are (sic) them. And in order to cover up their act of stealing within the premises, the security man was attacked and they left him for death.”
The evidence of PW1, the victim if carefully analysed one would discover that the finding of the court herein before reproduce adequately capture the event that transpired between the victim and the appellant and his gang, The discovery of the content of the box which the appellant was carrying and the act of identifying it by PW1 as the property of his employer and coupled with the confrontation of the accused and his gang by the victim PW1 to my mind sufficiently establishes prima facie that the appellant and his gang at the time the security man PW1 (victim) discovered that they were in possession of properties of his employer and which PW1 reasonably suspected to have been stolen. At that stage there came into existence fact suggesting the commission of an illegal act. The appellant was not alone, they are five in number according to PW1. Two of them ran away remaining three, the appellant inclusive. According to PW1, the appellant whom he knew very well before that day started pleading with him. After a while, pw1 decided to walk away. After turning his back, he was struck with a matchet. The evidence of PW2, the medical doctor is to the effect that there are several lacerations, cuts and wound on the head and body of the PW1, Putting these together one would be left in no doubt than to come to the conclusion that both the three, the appellant inclusive descended on the PW1 and inflicted all the injury described in Exhibit ‘A’ (Medical Report) on him. The act of consciensus of agreement can be inferred. I therefore see no reason to disturb the finding of the trial court that the prosecution has proved the ingredient of the offence of conspiracy against the appellant. I accordingly so hold
What is next is the offence of attempted murder. The question that agitates my mind is what is attempt or when would a person be said to have attempted to commit an offence.
Foremost, Attempt has been defined in Section 4 of the Criminal Code as follows:
The commission of an offence involved four stages:
(1) Intention
(2) Preparation
(3) Attempt
(4) The commission of the offence itself”.
In the Black’s Law Dictionary, Sixth Edition, an ‘Attempt’ ordinarily means an intent combined with an act falling short of the things intended. It may be described as an endeavour to do an act, carried beyond mere preparation, but short of execution. In the case of Yakubu Ibrahim v. The State (1995) 3 NWLR Pt.381 35 at 45 – 46. Pats Acholonu JCA as he then was and of blessed memory said thus:
“The actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime which is immediately and not merely remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of a specific crime. See Davey v. Lee (1968) 1 D.B. 366 D.C. Where the act concerned is equivocal, the intention of the defendant is relevant to see to what end the act was directed. When that is decided it still remains for the prosecution to know that the act itself was sufficiently proximate to the crime which the defendant intended to commit to amount to an attempt”.
Section 320 of the Criminal Code Law (Cap 29) Vol. II Laws of Ogun State of Nigeria 1978 provides-
“Any person who
(1) Attempts unlawfully to kill another or
(2) With intent unlawfully to kill another does any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger … life is guilty of a felony.
The appellant was convicted under subsection (1) of the Code”.
It is the requirement of the Constitution that every person charged with a criminal offence shall be presumed innocent until he is proved guilty.
The burden of proof is placed on the prosecution, misgiving, doubt, distrust, inkling, wariness or feeling are not enough to discharge the burden of proof on the prosecution. What the law requires is sufficient trace inculpating the accused. From the foregoing therefore it is suffice to say that there is no question that the established principle in all criminal cases tried by any court is that the prosecution must establish the guilt of the accused beyond reasonable doubt upon the established evidence before the trial court. In other words, the burden on the prosecution never shifts. See the case of Amala v. The State (2004) 6-7 SC 105. It is after the commission of a crime by a party is directly in issue in any proceeding that the application of Section 138 (1) of the Evidence Act (Standard of Proof/Proof Beyond Reasonable Doubt) would come to play. See the case of Arowolo v. Ifabiyi (2002) 2 SC (Pt. 1) 71.
Somewhere in this judgment I reproduced part of the evidence of PW1 which is contained on pages 57-58 of the record. I would like to reproduce the next paragraph to the one already reproduced for the purpose of considering the complaint against the conviction of the appellant for attempted murder.
“… The accused started to beg me because of the bits that I saw with him. The bits belong to the Obasanjo Quarry.
As I wanted to leave on my bicycle and having turned my back to him, the accused hit me from the back. My hands were matchet (sic). The matched (sic) was to strike me in my mouth I was injured in my mouth tongue and head”
Further to this and while answering question under cross examination by the learned counsel for the appellant, PW1 said:
“The accused had on him that day read box with him. The accused was wearing shirt that day…
Immediately after the incident, I could not tell anyone that it was the accused who attacked me. I was unconscious that day. I could not talk at all until after the first 10 days. It was after I was discharged from the hospital that I was able to explain to people, to my wife, to my boss and the police…
The injury inflicted on me was and is still serious. I did not just think it was the accused that attacked me, will (sic) his colleague. I saw him not that I thought…”.
In addition to this is the evidence of PW2 the medical doctor attached to the University of Ibadan. In support of the evidence of PW1 (the victim) on the extent and effect of the injury inflicted on him by the accused and his cohort, he said:
“… I remember 26/7/2004 I was working in General Hospital Ijaiye. I know Alao Fasola. While working in Ijaiye in the Orthopaedic Dept. I had cause to treat him as a patient. He was brought in on 26/7/2004 as an emergency. He had been assaulted by some persons and he had several injuries. He had multiple cuts to the face and the head, he was also unconscious. His cloth were soaked in blood. We proceeded to treat him by suturing all the multiple cuts he had in the head.
We also ordered investigations to be able to assess his medical status. We had to treat him as an unconscious, patient by passing a feeding tube through his noise (sic) and a tetheter through his penis. He received several medications. He was unconscious for a week before he regained consciousness.
On account of the severe fracture of the mandible we eventually referred him to the University College Hospital for more proper treatment. During the treatment, I could not converse with him. Primarily because he was unable to talk to us. When he regained consciousness he was still unable to talk.
So it was a case of the fractured jaw and head injuries. The fact that he was cut in several places and had lost a lot of blood, he could have died. He could also have remained unconscious for a long period. He could have had neurology deficit. It could have led to paralysis which is alien to a stroke.” (The underline is mine)
The finding of the court on the offence of attempted murder is contained on page 130. The court said after reviewing the evidence of PW1 and PW2 as follows:
“The evidence adduced by the prosecution in support of the second charge of attempted murder is enough to support the charge. The offence is proved beyond reasonable doubt. The accused is thus found guilty of the second offence of attempted murder.”
Considering the evidence of PW1, (the victim) and the Medical doctor, which point to no other resultant effect than death or paralysis haven regard to the severity of the injury inflicted on the victim and considering the evidence that the victim was not found from after 4.00 pm of 25/7/2004 till 26/7/2004 after the incident and found unconscious and soaked in blood (see Exhibit ‘A’, the Medical Report) one would come to no other logical conclusion than that the assailant of PW1 after inflicting the injuries on the victim left him unconscious and most probably believing that he had given up the ghost. This view is buttressed by the evidence of PW2 who said the severeness of the injury would have lead to the death of the victim. The victim also said he was unconscious for several days. The effect of the foregoing is sufficient to establish beyond doubt that the appellant and his co-assailants realizing their alleged criminal act of theft of bits has been uncovered when PW1 accosted them and after realizing that the appellant is known to the victim PW1, they decided to silence him so that their criminal act of theft would not be revealed to the public or the law enforcement agents. Unlucky for them, PW1 did not die. What they were trying to cover was eventually let out of the cage by the victim (PW1) who was lucky to be brought back to life. On this note, I answer this issue in the affirmative.
Lastly is the issue number 3 which reads:
“Whether the trial court was right in rejecting or refusing the appellant’s alibi.”
This issue is distilled from Grounds 4 and 5 of the amended notice of appeal. The contention of the appellant is that both in Exhibits C1 and C2 which are the recorded voluntary statement of the appellant in Yoruba and English version. The appellant raised the plea of Alibi when he said he was in his house on the 25/7/2004. To put it in his own words the appellant said:
“On 25/7/2004, I was in my house, I did not go to anywhere. I did not come to or visited quarry. I know nothing about the incident. I don’t steal. I am not a thief I never steal in my life.”
The evidence of DW1 his brother and DW2 his wife toed this line.
Both of them said the appellant was indoors throughout that day and went to nowhere. See pages 81 and 99 of the record. The appellant contended based on the pronouncements in the cases of Ifejinika v. The State (1999) 3 NWLR (Pt. 593) 59, at p. 78, Isiekwe v. The State (1999) 9 NWLR (Pt. 617) 43, Ikono v. The State (1973) 8 NSCC 352 at P.363, Esangbedo v. The State (1989) 20 NSCC (Pt. 111) 23 at P.31,Ozaki v. The State (1990) Pt. 124 at p.125 and Balogun v. A-G Ogun State (No. 2) (2002) 6 NWLR (Pt. 763) 512 at p.534 that the duty of disproving the defence of alibi rest on the prosecution. All the appellant need to do was to introduce, adduce or produce evidence of his alibi. He argued that in this case the appellant did not only introduce timeously at the police station, his alibi, he has given particulars such as the address of the place he was and the person he was with.
The police he submitted never investigated the plea of alibi raised by the appellant in his defence. The law is clear and very trite that the police has a duty to investigate an alibi when timeously raised before trial by an accused person. Where the police fail to investigate, it is settled that it is tantamount to an admission by prosecution and raised a reasonable doubt in the mind of the judge. The doubt he argued should be resolved in favour of the Appellant and leads to his acquittal. He referred to Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 1 at p.27, Ozulonle v. The State (supra) and Onuchukwu v. The State (1998) 4 NWLR (Pt.547) 576 at p.592.
On the strength of the foregoing he urged the court to hold that the appellant alibi is water-tight and avails him.
The learned DDPP representing the respondent reacted and submitted that the police investigated the alibi. He referred to the evidence of PW4 at page 81 lines 12-14 of the record. He said the police obtained statement from the father of the accused and was tendered as Exhibit ‘B’ without any objection. The statement he submitted was to show that the appellant as at the time the alleged offence was committed he was living with his father. He conceded to the submission that it is the duty of the prosecution to investigate the pleas of alibi raised by the appellant but if the prosecution adduces sufficient and accepted evidence to fix a person or an accused person at the material time, his alibi is thereby logically and physically demolished and the plea will not be effective as a defence. He cited the case of Archibong v. The State (2006) 89 SCM 43 at page 65. He submitted that the prosecution has done that.
In his judgment, the learned trial judge on pages 127-128 of the record said:
“Now let us consider the alibi put up by the accused. The accused testified and called two witnesses. The accused put up the defence of alibi that he was at home on the day of the incident. He gave his address as No. 158 Oja-Agbo, Agura Road Abeokuta. But in his statement to the police, Exhibit ‘C’ and ‘C2’ he gave his address as No 158 Agura Road Oja Agbo, Abeokuta. The 1st DW Sasiu Ramoni, brother to the accused who testified that on the date of the incident, the accused with whom he was living in the same house, was at home throughout that day. But he gave their address as No. 158 Agura Road, Agoka, Abeokuta. And the 2nd DW Debora Ramoni, wife of the accused, also testified that the accused was at home throughout on 25th July 2004. However, she gave the address of that house as No. 58 Agura Road Oja Agbo, Abeokuta.
From the above, can the accused be said to have put good alibi when he gave No. 158 Agura Road, Abeokuta, No 3. Gbagura Road Oja-Agbo, No. 58 Agura Road and No. 158 Oja Agbo Agura Road as the place where he was on the date of the incident.
Of course “no”. That defence therefore collapses and cannot be a good alibi in law”.
The question that agitates my mind now is what is Alibi. The etymology derives from Latin meaning elsewhere, at another place. In law it is a plea or mode of defence under which a person on trial for a crime proves or attempt to prove that he was in another place. When the allege act was committed Alibi therefore is different from all of the other defences. It is based upon the premise that the accused is truly innocent.
See the Criminal Law Desk Book (1988: ISBN 0820512176). See Okoro v. State (2007) ALL FWLR (Pt. 361) 1794 at 1807-9.
The evidence of the victim, PW1 is to the effect that he knew the accused appellant very well. Not that alone his father is a co-worker before he retired from where he is working, added to this they leave in the same area. Odeda. This suggests to me that the accused is not a stranger to the victim. Hence when PW1 insisted to know the content of what he was carrying and the appellant showed it to him, they started begging PW1 to let them go. For whatever reason PW1 turned his back to proceed, when suddenly they descended on him. Therefore, injury inflicted on PW1.
If for nothing was to silence him. Agains, looking at the finding of the court that both the appellant and his witnesses gave different location address and in addition the evidence of PW4 to the effect that the appellant was living with his father at the time the crime was committed and moved to another location suggests inconsistency and doubt in the testimony of plea of alibi by the appellant which renders the plea unsustainable. The evidence of PW1 squarely pin the appellant to the “locus in quo”.
Where the accused is pinned to the scene of the crime, the defence of alibi no more avails him. This is because the defence by the accused that he was elsewhere at the material time the offence was committed is destroyed by the unequivocal evidence of witness or witnesses tying him to the locus in quo as one who committed the offence.
See the case of Otunba F.E. Sowemimo & Anor v. The State (2004) 4 SCM 207. Therefore, if the prosecution adduces sufficient and accepted evidence as in the case at hand and fix an accused person at the scene of crime at the material time his plea of alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. See Iheonunekwu Ndukwe v. The State (2009) 2-3 SC (Pt. 11) 35, Sale Dagavya v. The State (2006) 1 SCNJ 251 and Olayinka Afolabi v. The State (2010) 5-7 SC (Pt. 11(93). Based on the fact of this case, I would align myself with the decision in the case of Dehemaje v. The State (2008/6-7 SC pt. 11)1, Eke v. The State (2011) 1-2 SC (Pt. 11) 219. That it is not every failure of the police to investigate an alibi raised by an accused as argued by the learned counsel representing the appellant that is fatal to the case of the prosecution.
Accordingly therefore, I answer this issue in the affirmative. That is to say that the trial court was absolutely right in rejecting and refusing the appellant’s plea of alibi.
Having resolved the two issues relevant to the determination of this appeal against the appellant, I conclude that the appeal is devoid of any merit. It is accordingly dismissed. The conviction and sentence of the appellant by the lower court delivered by Hon. justice P.A. Onamade (as he then was) on the 23rd January, 2013 in Charge No. AB/22C/2005 is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, M. N. Oniyangi, JCA gave me the privilege of reading in advance the judgment just delivered by him.
The issues that came up for determination in this appeal were comprehensively analysed and resolved by my learned brother. I agree with his reasoning and conclusions thereon. I have nothing else to add. I therefore also hold that this appeal has no merit. It is accordingly dismissed. The judgment of the court below, delivered by P. A. Onamade, J on the 23rd day of January, 2013 is hereby affirmed.
I abide by the consequential orders made therein, including the order on costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my brother Mudashiru Nasiru Oniyangi JCA. My lord has carefully considered the issue of conspiracy and the defence of alibi and come to a just resolution of both in my humble view.
I agree that the appeal lack merit, I too will dismiss it.
Appeal dismissed.
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Appearances
A. A. OLATUNJIFor Appellant
AND
I.K. OMOTOSHO DDPP Ogun State MOJ with B.E. OLANIYAN (SC)For Respondent
