ALFRED v. STATE (2020)

ALFRED v. STATE

(2020)LCN/14229(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/A/87C/2019

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

OJODOMO EKOMO ALFRED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL MATTERS

The appellant and respondent are on the same page on the following trite principles of law that are salient to this appeal. They are:
(I) That being a criminal offence, the onus of proof is on the prosecution (here, the respondent) and it is on the standard of proof beyond reasonable doubt. They are also agreed that, where in a criminal trial, there is doubt as to the guilt of the accused person, such doubt must be resolved in favour of the accused person. These principles are no doubt trite. See the following cases: – Sunday V. State (2013) LPELR – 20196 (CA), Charles V. State (2018) LPELR – 43663 (CA), Agugua V. State (2017) LPELR – 42021 (SC), Tobi V. State (2019) LPELR – 46537 (SC), FRN V. Abubakar (2019) LPELR – 46533 (SC), Dokubo V. State (2011) LPELR – 4574 (CA). PER ABUNDAGA, J.C.A.

THE INGREDIENTS TO PROVE CULPABLE HOMICIDE UNDER SECTION 229 OF THE PENAL CODE

The offence of attempted culpable homicide under Section 229 of the Penal Code each of which must be proved beyond reasonable doubt. The ingredients are:
(i) That death of a human being was attempted;
(ii) That such attempt was the act of the accused person;
(II) That such act was done with the intention of causing death or that the accused person knew or had reason to know that death would be the probable cause and not only the likely consequence of the act or any bodily injury which the act was intended to cause. PER ABUNDAGA, J.C.A.

WHETHER OR NOT THE DEFENCE OF ALIBI SHOULD BE INVESTIGATED TIMEOUSLY

Now, it must be made clear that the law that non-investigation of alibi will not necessarily lead to an acquittal is an exception rather than the rule. Of course, there are a number of decisions to the effect that where there is positive evidence which cancels the alibi, or where the prosecution adduces sufficient and accepted evidence which fixed the accused person at the scene of the crime at the material time the alibi raised is logically demolished or fizzles into thin air and thus doomed. See the case of Osaro Nomayo V. The State (2013) LPELR – 20310 (CA), see also Newman Osi V. The State (2018) 44778 (CA), Etim Etim Udo V. The State (2018) LPELR – 43707 (SC), Sani Lawali V. The State (2019) LPELR – 46405 (SC).
On the need to investigate alibi when raised at the earliest time possible, the Supreme Court in the case of Idemudia V. The State (2015) 17 NWLR (Pt 1488) 396 – 397 paras H – G held:
“In an offence requiring physical presence, an alibi set up by the accused person must be investigated thoroughly by the police. The alibi must be definite as to time, place and the persons who know about the accused person’s whereabouts. Once an alibi is timeously raised, it must not be treated lightly because the onus is on the prosecution to disprove it. In the instant case, there was no effort made by the police to investigate further the alibi raised by the appellant. The appellant’s brother who was at the police station did confirm that the appellant was with him in Warri on the day of the incident. If the prosecution doubted the elder brother’s confirmation of alibi, it was its responsibility to have gone on to investigate it.”
In the case of Olaiya Opeyemi V. The State (which appears to me to be the latest decision of the Supreme Court on alibi) delivered on 7/6/19, the apex Court held that once the defence of alibi has been raised timeously and with sufficient particulars, it is the duty of the police to investigate it in order to verify the claim. Failure to do so is fatal to the prosecution’s case. In that case however, the defence of alibi was not considered because it was, as far as the Court was concerned, raised for the first time in the appellant’s evidence at the trial. The Court refused to speculate on the appellant’s claim that he raised it at the time his extra judicial statement was recorded but that the police omitted to record it.
The conclusion I draw from the decisions of this Court and the Supreme Court on alibi is that failure to investigate alibi set up by the accused person timeously and with sufficient particulars as to the accused person’s whereabout, time, and the persons with whom he was is fatal to the prosecution’s case, unless there is credible evidence fixing the accused person to, not only the scene of crime but its commission. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kogi State High Court presided over by Hon. Justice A.N. Awulu delivered on 7th November, 2018 in Suit No: AHC/9C/2017.

The judgment is predicated upon a single Court charge of attempted culpable homicide punishable under Section 229 of the Penal Code. In a nutshell, the respondent’s case is that on 30th June, 2017, the appellant armed himself with a gun and a machete and hid himself in a bush along Awo– Akukunda – Awo–Akpolokuta road, Ankpa Local Government within the Kogi State judicial division, and while there, at about 7:30pm, attacked, shot and macheted one Olobo Jubrin, which attack resulted in the amputation of the four fingers of the left hand of the said Olobo Jubrin. The respondent’s case is that the attack was with the clear intention of the Appellant to cause the death of Olobo Jubrin.

The Appellant pleaded not guilty. The Respondent was as it were saddled with the responsibility of proving the guilt of the Appellant beyond reasonable doubt.

In the bid to discharge that burden the Respondent

called four witnesses and tendered in evidence four documentary Exhibits, admitted in evidence and marked as Exhibits PI, PII, PIII and PIV.

At the close of the Respondent’s case the appellant elected to defend himself, and did so by calling two witnesses and testifying in his defence.
Thereafter counsel for the Appellant and the respondent orally addressed the Court.
In its judgment, the Court found the Appellant guilty as charged, convicted him and sentenced him to 10 years imprisonment.
Not satisfied with the judgment, the Appellant filed a notice of appeal on 23rd November, 2018.

The Notice of Appeal contains two grounds of appeal including the omnibus ground of appeal. The two grounds of appeal are as hereunder reproduced:
Ground One:
The trial Court erred in law when it convicted the Appellant, holding that the prosecution had proved beyond reasonable doubt that it was the Appellant that attempted to kill PW2 (the victim).
Particulars of Error:
1. The Appellant timeously raised defence of alibi that he was at the burial ceremony of one Philip Adama at the material time the victim was attacked, both at

the Police Station and at the trial.
2. The alibi raised by the Appellant at the Police Station after his arrest was never investigated.
3. The Appellant called two (2) witnesses who were with him at the burial ceremony to establish his alibi.
4. The evidence of the Appellant’s witnesses were never discredited, challenged or contradicted.
5. The prosecution claimed to have visited the scene of crime but failed to carry the victim and the appellant along.
6. The prosecution did not recover anything incriminating from the Appellant.
7. The prosecution did not tender the gun and the machete purportedly used by the Appellant to attack the victim.
8. Dr. Okpara who purportedly issued the medical report relied upon by the Lower Court was never called to testify at the trial.
9. The victim was also taken to a native home where the purported pellets were removed.
10. The purported medical report did not state the cause and the medical implication of the injuries sustained by the victim.
GROUND TWO:
The judgment of the trial Court is against the evidence adduced before the Court.

On due compilation and transmission of the record of appeal to this Court on 6/2/19, counsel filed their briefs of argument. The Appellant’s brief of argument, settled by Joe Abah Esq. was filed on 6/2/19 and deemed properly filed and served on 9/4/2020. A.O. Ameh, Esq. Senior Legal Officer, Ministry of Justice, Kogi State, who settled the Respondent’s brief of argument, filed same on 10/7/19.It was deemed properly filed and served on 9/4/2020.

A lone issue was formulated by Appellant’s counsel from the two grounds of appeal. The issue as couched is:
“Whether the trial Court was right in holding that the ingredients of offence of attempted culpable homicide were established by the prosecution against the Appellant even when the defence of alibi was timeously raised by the Appellant?”

In the argument of appellant’s counsel on the lone issue it is submitted that the onus is on the prosecution to prove the guilt of the defendant beyond reasonable doubt, and where there is doubt such doubt must be resolved in favour of the defendant.
Counsel refers us to Sections 131 (1) & (2), and 135 (1) & (3) of the Evidence Act, 2011

Counsel submits that the ingredients of the offence of attempted culpable homicide which the Respondent must prove beyond reasonable doubt are:
(I) That death of a human being was attempted;
(II) That such attempt was the act of the accused.
(III) That such act was done with the intention of causing death or that death would be the probable cause and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.

In the submission of appellant’s counsel, the respondent failed to prove any of the ingredients of the offence against the appellant. It is submitted that there is no direct or positive evidence led by the respondent linking the Appellant with the offence. That the evidence where available is manifestly riddled with material contradiction such that the Lower Court ought not to have relied on it to convict the Appellant. For instance, he points out what he believes is a contradiction between the evidence of PW1 in Court and his extra judicial statement (Exhibit P4) contained at page 65 of the record of appeal. Counsel also points to the evidence of PW1 under cross examination

at page 3 of the record of appeal. Counsel therefore submits that it is clear that the evidence of PW1 at the trial is inconsistent with his extra judicial statement to the police, and that the Court cannot rely on any one of the two.
For this submission counsel relies on the case of Francis Asanya Vs. The State (1991) 3 NWLR (Pt180) 422 at 427 – 433.

Appellant’s counsel further submits that the scene of crime as testified to by PW2 and PW4 are different. That while PW2 identified the scene of crime as between Awo Akukunda and Awo Akpolokuta, PW4 in his evidence in chief identified the scene as Awo Akpali. He submits that Awo Akpali is a different village from Awo Akukunda and Awo Akpolokuta, and that thus, the prosecution has established two different scenes of crime. His poser therefore is, which of the scenes did the trial Court fix the Appellant at in holding that there are instances where non investigation of alibi will not be fatal? It is therefore submitted that where the Respondent identified two different scenes of crime, it cannot be said that the prosecution has provided sufficient particulars as to the place of crime to

justify the finding of the trial Court at page 62 of the record of appeal.

Counsel also points to contradiction between the time given in the victim’s extra judicial statement (Exhibit P4) and his evidence in Court. That in the former, he stated the time to be about 7pm, and in the latter, he gave the time to be about 6:30pm. Thus, counsel submits, there is no certainty as to the time of the alleged offence.

In regard to the Appellant’s evidence, it is submitted that he gave evidence denying the offence, and that the evidence of DW1 and DW2 which corroborates his, and in particular his defence of alibi was neither challenged nor contradicted under cross examination. That the said evidence is deemed admitted. Reliance is placed on the case of Adebayo V. Babalola (1995) 7 NWLR (Pt 408) 383 at 407 para F.

It is further submitted by the appellant’s counsel that the Appellant raised the defence of alibi in his extra judicial statement (Exhibit P4) contained at pages 70 – 71 of the record of appeal but it was not investigated by the prosecution (that is the respondent). On the other hand it is contended that the Appellant, by

cogent and credible evidence was able to give a vivid account of his whereabout as at the time of the alleged offence. That the Appellant called DW1 and DW3 (SIC) as witnesses whose evidence is the same with the Appellant’s. counsel submits that the lower Court acknowledged that the appellant raised alibi in his extra judicial statement but still went ahead to disregard the decisions of this Court and the Supreme Court by holding that the non-investigation of alibi is not fatal to the respondent’s case. In support of counsel’s submission for faulting the judgment of the trial Court that the non-investigation of alibi is not fatal to the respondent’s case, counsel cites a number of decisions of this Court and the Supreme Court, including Idemudia V. The State (2015) 17 NWLR (Pt 1488) 396 – 397 paras H – G, Tajudean Iliyasu V. The State (2015) 11 NWLR (Pt. 1469) 26 at 60 paras E – B, Abubakar Mohammed V. The State (2015) 10 NWLR (Pt 1468) 496 at 524 paras A – B.

It is further submitted for the Appellant that the failure of the Respondent to investigate, challenge and or contradict the alibi raised by the

Appellant leaves serious doubt in its case which ought to be resolved in favour of the Appellant. It is submitted that the case of Emmanuel Eke V. The State relied upon by the trial Court in holding that the failure of the prosecution to investigate alibi is not fatal to the prosecution’s case is of no help to the respondent. That in that case, it was the holding of the Court that there are instances where non investigation of alibi will not be fatal to the prosecution’s case especially where sufficient particulars as to time, place and the persons the defendant was with are not provided by the defendant which is not the case at hand.
Counsel therefore urged this Court to resolve the lone issue in favour of the Appellant.
On the whole, we are urged to allow the appeal, and set aside the conviction of the Appellant.

The Respondent also formulated a lone issue for consideration. The issue is; whether the trial Court was not right when it held that the prosecution proved beyond reasonable doubt the offence of attempted culpable homicide against the Appellant in this case.

The Respondent’s counsel commenced his argument with

stating the burden and standard of proof in criminal proceedings. Like the Appellant, he submits that the burden is on the prosecution (here, the respondent) and the standard is, proof beyond reasonable doubt.

In support of his submission, he cites Ola V. The State (2018) LPELR – 44983 18 – 19 (SC), Amaremor V. The State (2014) 10 NWLR (Pt 1414) 1, Akinlolu V. The State (2015) LPELR – 25986 (SC).

Counsel proceeds to set out the ingredient of the offence of attempted culpable homicide under Section 229 of the Penal Code, which expectedly are the same as earlier stated by the Appellant’s counsel.

On the 1st ingredient, which is that; there was an attempt to kill a human being, it is submitted for the Respondent that the Respondent led convincing evidence through PW1 and PW2 to establish that there was an attempt to kill one Abdul Tijani (PW2) on 30/6/17. Counsel further submits that the evidence of PW1 and PW2 as well as the contents of Exhibit P3 unequivocally shows that there was an attempt to kill PW2 on 30/6/17. It is submitted that the findings of the trial Court based on a careful evaluation by it of the evidence

before it at page 60, lines 14 – 30, page 61, lines 1 – 11 of the record have not been shown to be perverse.

It is also the submission of Respondent’s counsel that the Respondent led credible evidence to prove that it was the Appellant that attempted to kill PW2 on 30/6/17. It is submitted that the evidence of PW2 who gave an eye – witness account of how he was attacked by the Appellant was not shaken under cross – examination. We are referred to the evidence of PW2 under cross examination at page 33 lines 11 – 16 of the record of appeal. It is submitted that the evidence of PW1, PW3 and PW4 corroborate the evidence of PW2.

In regard to the defence of alibi raised by the appellant, it is submitted for the Respondent that it is trite law that where an accused person raises the defence of alibi; and there is credible evidence of an eye witness which fixes the accused person to the locus criminis, the defence of alibi is automatically rendered ineffective. Counsel relies on the case of Awopejo V. State (2001) 92 LRCN 3187. In obvious reference to the submission of appellant’s counsel that the evidence of PW1 in

Court and his extra judicial statement (Exhibit P1) should be rejected because of the inherent inconsistency therein, Respondent’s counsel submits that it is not germane to the lone issue and insists that the timeous mention of the Appellant’s name (Alfred) to PW1, even though incomplete at the scene of crime but later completed the following day by the victim (PW2) upon little recovery from the pain of the attack is enough to corroborate the evidence of PW2 that it was the Appellant that attacked him on that day, more so that it is not disputed that they both knew each other before the incident. In support of this submission, counsel relies on the case of Okafor V. A.G. Imo State (2018) LPELR – 43693 at pages 22 – 23. Also relied on are the cases of Abdullahi V. State (2018) 17 NWLR (Pt. 115) 203, and Ekaidem V. The State (2011) LPELR – 4076. It is therefore submitted that the defence of alibi cannot avail the appellant in view of the evidence of PW1 and PW2.

It is further submitted that the evidence of DW1, DW2 and DW3 were full of contradictions in material terms which rendered the Appellant’s defence of alibi

useless. The Court is referred to several pages of the record of appeal for the alleged contradictions. It is thus submitted that the entire evidence of the Appellant and his witnesses are nothing but afterthoughts, and that the trial Court was therefore right to have relied on the evidence of PW2 in holding that it was the Appellant that attempted to kill PW2 on the day of the incident. Counsel relies on the cases of Godsgift V. The State (2016) LPELR 40540 (SC) AND Iheonunekwu Ndukwe V. State (2009) Vol. 2 – 3 SC 7 for his submission.

On the Appellant’s submission that there are contradictions in the evidence of the prosecution witnesses, it is submitted that what appellant’s counsel points out as contradictions are nothing but minor discrepancies. It is submitted, for instance, in regard to the scene of crime that the charge did not name the specific spot where the attack took place. That even the victim (PW2) in his evidence stated that he was attacked while returning to Awo Akolokuta from Awo Akukunda. In essence, counsel’s submission is that the mention of Awo Akpali by PW4 as the scene of crime does not contradict the

prosecution’s case as to the scene of crime, he being a police officer who had spent 3 years in that area and knows the two settlements between or along which the incident took place. It is therefore submitted that the evidence of PW2 sufficiently fixed the Appellant to the scene of crime, which in counsel’s opinion is not in issue in this appeal.

On the Appellant’s counsel’s submission that there is no certainty as to the time at which the crime took place, it is submitted for the Respondent that appellant’s counsel’s submission is misconceived because the use of “about” in the time shows that PW2 approximated the time of his attack. That it is unthinkable to expect PW2 to be exact in the time of his attack in the circumstances he found himself. It is therefore submitted that “about 6:30pm” and “about 7:00pm cannot be regarded as material contradictions but minor discrepancies which does not go to the root of the prosecution’s case. On the effect of minor discrepancies between a previous statement and oral testimony, counsel relies on the case of Oloye V. State (2018) LPELR –

44775 at 40 ratio 4 (SC).

Counsel sums up by submitting that the Respondent was able to prove that it was the appellant that attempted to kill PW2.

In regard to the third ingredient, it is submitted that the trial Court was right to come to the conclusion that the ingredient was proved. Relying on the evidence of PW2, with particular reference to the weapon used, it is submitted that as rightly found by the trial Court, death was the intended consequence of the Appellant’s attack. In addition it is submitted that the medical report (Exhibit P3) shows that the life of PW2 was what the appellant intended to take by the attack. This Court is on the above premise urged to hold that the prosecution (the Respondent) proved that the Appellant intended to kill PW2 during the attack.

In sum, the respondent urges upon this Court to resolve the lone issue in favour of the respondent, and to dismiss the appeal and affirm the Judgment of the trial Court.

The lone issue each formulated by the appellant and the respondent are similar. Therefore any of them can be adopted as I find them to be germane to the arguments canvassed in this appeal.

Therefore I adopt the issue formulated by the Respondent but with slight modification. The issue I hereby formulate for the determination of this appeal is;
“Whether the trial Court was not right when it held that the prosecution proved the offence of attempted culpable homicide against the Appellant beyond reasonable doubt.”

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The Appellant and the Respondent are also agreed on the ingredients of the offence of attempted culpable homicide under Section 229 of the Penal Code each of which must be proved beyond reasonable doubt. The ingredients are:
(i) That death of a human being was attempted;
(ii) That such attempt was the act of the accused person;
(II) That such act was done with the intention of causing death or that the accused person knew or had reason to know that death would be the probable cause and not only the likely consequence of the act or any bodily injury which the act was intended to cause.

In paragraph 4.8 at pages 7 – 8 of the Appellant’s brief of argument, it is submitted that the prosecution failed woefully to prove any of the ingredients of the offence alleged against the Appellant. However, nowhere in the entirety of the appellant’s brief of argument was any argument advanced to show or establish that there was no attempt made on the life of any human being at all on 30/6/17 (not necessarily, PW2). All that the Appellant addressed in his brief of argument is that the respondent failed to prove that it was the appellant

who attacked PW2 on the material date and time with the intention of killing him. On the other hand I am in agreement with the submission canvassed in paragraph 4.3 at page 5 of the Respondent’s brief of argument that the prosecution led convincing evidence through PW1, PW2 and the medical report (Exhibit P3) to establish, and did establish that there was an attempt to kill one Abdul Tijani (PW2) on 30th June, 2017. It is therefore without doubt that the first ingredient of the offence was established by the Respondent. I so hold.

Indeed as postulated by the trial Judge in his Judgment, the gravamen of this appeal is whether the attempt on the life of PW2 on the material date and time was the act of the Appellant.

It is important at the onset of the consideration of this ingredient to note that the onus of proof in criminal cases such as the instant case remains on the respondent. It is static throughout the trial. It does not shift unto the Appellant. See the following cases on this point – Adeyeye V. State (2013) LPELR – 19913 (SC), Oyetomi V. State(2018) LPELR – 46146 (CA), EffiongV. State (2016) LPELR – 40124 (CA),

Ugochukwu V. State (2016) LPELR – 40785 (CA).
What this means is that the prosecution in its bid to establish the guilt of an accused person must not leave anything to chance. All the legal requirements for the successful prosecution of the case must be met by the prosecution, because it must be clear to it that it can only succeed on the strength of its case, and cannot expect the accused person to prove his innocence.

PW4, Sgt. Ajidadun Olasanmi in his evidence told the Court that on 5th July, 2017, a case of attempted culpable homicide was transferred to the office of the CID Lokoja. He told the Court that on the same date the Appellant volunteered a statement which he recorded. That statement was tendered and admitted in evidence during the trial as Exhibit P4. In the said statement the Appellant denied the offence and set up the defence of alibi which the police did not investigate. At the trial the Appellant reiterated this defence and went further to call as witnesses the persons he claimed that he was with at the time the offence was allegedly committed by him. In his Judgment, the trial Judge rejected the defence of alibi, and held,

with the aid of the case of Emmanuel Eke V. The State (2011) LPELR 1133 that where the prosecution has by evidence fixed the accused to the scene of crime, the defendant’s alibi is physically and logically demolished. In the judgment of the trial Court at pages 62 – 63, the learned trial Judge held:
“The defendant testified that he was at the burial ceremony of late Philip Adama at the time the offence was committed. He called two witnesses who stated they were with him at the material time. He stated this much in his extra – judicial statement to the police, Exhibit P4. Now, there was no investigation of the alibi raised by the defendant. And so I ask myself if the failure to investigate the alibi is fatal to the prosecution’s case? The alibi as raised by the defendant must be considered vis-à-vis the prosecution’s case. PW2 was categorical that it was the defendant who attacked him. This piece of evidence which was not shaken under cross – examination pinned the defendant to the scene of crime. As I stated earlier on in this Judgment, where the prosecution fixes the defendant to the scene of crime by

evidence accepted by the Court, the alibi raised is logically demolished. In such a case, there is no alibi to warrant any investigation. If the defendant was at the scene of crime, his alibi that he was at the burial ceremony had been demolished. To the extent, there was no alibi available to be investigated. I hold that the defence of alibi does not avail the defendant as his alibi had been demolished by the prosecution fixing him to the scene of crime…”
The Appellant’s counsel does not agree with the position taken by the trial Judge on the issue of alibi. It is the submission of appellant’s counsel that the case of Emmanuel Eke V. The State (supra) relied on by the trial Court does not support the Respondent’s case because in that case, the appellant who was the accused did not provide the particulars of his whereabout particularly as to time, place and the persons the defendant was with at the time the offence was allegedly committed, which is not the case in the case at hand. In appellant counsel’s submission, it is the duty of the prosecution to investigate alibi raised by an accused person at the earliest time

as failure to do so will be fatal to its case. Reliance was placed on several cases earlier highlighted by me in the recap of appellant’s arguments.
In the case of Emmanuel Eke V. State (Supra) relied on by the trial Court, the appellant did not raise alibi at the earliest time possible to prompt an investigation. It was raised in the oral evidence of the appellant. This is what was said by the Supreme Court in that case:
“…The Appellant, in his oral evidence attempted to put up the defence of alibi. This means that he was not at the scene of crime. Alibi means “elsewhere”. It is the duty of the police to investigate same. But it is the duty of the accused to furnish the particulars of alibi at the earliest opportunity. He must furnish his whereabout and those present with him. It is then left to the prosecution to disprove same. Failure to investigate will lead to acquittal.
“…The appellant who did not put up his defence of alibi at the time of investigation cannot be taken seriously. Making the plea in his evidence at the trial is a ploy which equates to no avail in the circumstance.” Per Fabiyi, JSC (P16 paras B – F).

persons who know about the accused person’s whereabouts. Once an alibi is timeously raised, it must not be treated lightly because the onus is on the prosecution to disprove it. In the instant case, there was no effort made by the police to investigate further the alibi raised by the appellant. The appellant’s brother who was at the police station did confirm that the appellant was with him in Warri on the day of the incident. If the prosecution doubted the elder brother’s confirmation of alibi, it was its responsibility to have gone on to investigate it.”
In the case of Olaiya Opeyemi V. The State (which appears to me to be the latest decision of the Supreme Court on alibi) delivered on 7/6/19, the apex Court held that once the defence of alibi has been raised timeously and with sufficient particulars, it is the duty of the police to investigate it in order to verify the claim. Failure to do so is fatal to the prosecution’s case. In that case however, the defence of alibi was not considered because it was, as far as the Court was concerned, raised for the first time in the appellant’s evidence at the trial. The Court

refused to speculate on the appellant’s claim that he raised it at the time his extra judicial statement was recorded but that the police omitted to record it.
The conclusion I draw from the decisions of this Court and the Supreme Court on alibi is that failure to investigate alibi set up by the accused person timeously and with sufficient particulars as to the accused person’s whereabout, time, and the persons with whom he was is fatal to the prosecution’s case, unless there is credible evidence fixing the accused person to, not only the scene of crime but its commission.

I am therefore under an inescapable duty to sift through the evidence adduced at the trial Court in order to take a position on the finding of the trial Court that the non-investigation of alibi set up by the Appellant is not fatal to the respondent’s case.

Let me start with the evidence of PW1, the brother of the victim (PW2). He made an extra judicial statement, Exhibit P1. The Appellant’s counsel has impressed upon this Court to reject PW1’s statement to the police, Exhibit P1 and his evidence in Court because the two are inconsistent.

He relies on the case of Francis Asanya V. The State (1991) 3 NWLR (Pt180) 422 at 427 – 433. Counsel erroneously refers to the statement as Exhibit P4. It is not Exhibit P4 but Exhibit P1. I refer to page 65 of the record of Appeal. In the said Exhibit P1 the said PW1 stated that while in his compound on 30th June, 2017, one Mutitala Ochidali and Oko Gabriel came and informed him that his younger brother was shot and was macheted by unknown person. That he then went out and saw people gathering close to his house.
However, in his evidence in Court he stated that on 30/6/17 between 7pm and 8pm he heard screams calling on people to come. That he ran there and saw his brother, Olobo Jubrin (PW2) lying down covered in blood on his face and body. That his brother could only pronounce the name “Alfred”. Under cross-examination by appellant’s counsel he told the Court that it is not true that people came to his house to tell him that his brother was lying somewhere in a pool of blood. On how he came to know about his brother’s (PW2) attack, there is inconsistency between his extra judicial statement and his evidence in Court. In law,

the evidence of PW1 on this issue in Court, and his extra – judicial statement are liable to be rejected, and I so hold. See Francis Asanya V. The State (Supra). Also, I regard his evidence in Court to the effect that his brother while being taken to the hospital could only pronounce the name Alfred as an afterthought. If indeed that was what happened, he ought to have stated it in his statement to the police but did not. The appellant faulted the respondent’s evidence as to the scene of crime. To my mind, the appellant’s counsel by his submission blows hot and cold at the same time. In his submission, the scene of crime as given by PW4 is Awo Akpali which is different from Awo Akukunda and Awo Akpolokuta, but the same counsel stated that the said PW4 visited the scene of crime in the absence of both the appellant and the victim (PW2). How did the police team know that the exact scene of crime is Awo Akpali? Who took the police investigating team to the exact location in the absence of the victim who was then still in the hospital? What a sloppy investigation by the police! It is such a shame that in the investigation of a crime as serious

as the case for attempted murder the police could visit the scene of crime in the absence of both the victim and the accused person. That is by the way.

However, PW2 in his evidence did not give the specific spot where the incident took place. He was nevertheless clear in his evidence that the attack took place while he was returning to Awo Akpolokuta from Awo-Akukubda. This is fully reflected in the charge; which is that the attack took place on the material date along Awo-Akukunda- Awo-Akpolokuta road. Therefore the submission of Appellant’s counsel that the scene of crime to which the appellant could be pinned as the attacker is not certain does not fly. I reject it. There are no two scenes of crime.

The appellant also raised the issue of uncertainty of time in the prosecution’s case. It is the appellant’s case that whereas PW2 stated in his extra judicial statement that he was attacked at about 7:00pm, in his evidence in chief he told the Court that he was attacked at about 6:30pm. That there is therefore no certainty as to the time of the alleged offence. This submission also does not fly. It totally lacks merit. The use of the

word “about” shows that the witness was not certain as to the exact time he was attacked. There is no much difference between “about 7:00pm” and “about 6:30pm”. And in the circumstance of the attack as narrated by the PW2, it will be foolhardy to expect him to begin to seek for exactitude of time of his attack even if he had a wristwatch on him. PW2 is not just an eye witness. He is the person against whom the savage attack was perpetrated. His evidence leaves no discerning mind in doubt that it was the appellant who attacked him. He and the appellant spoke before the attack. That the appellant told him that he was going to kill him, and when he asked him what his offence was, he shot him on his face and neck followed by the machete attack.

Cross examined, probably with a view to discrediting him, the answers given by PW2 rather fortified his evidence in chief. He told the Court that he and the appellant had known each other very well, and that the Appellant had warned him over one Jummai, PW2’s ex-girlfriend with whom they had a child. The Appellant, both in evidence in Court and his extra judicial statement

stated that he knows PW2 whom he said is from Awo Akpolokuta village while himself and the ex-girlfriend of PW2 are from Awo-Akpali village (I refer to Exhibit P4 at pages 70 – 71, the evidence of PW2 at pages 31 – 33, and the evidence of the appellant at pages 44 – 45 of the record of appeal).

As already noted the appellant setup a defence which was not investigated. He gave details or particulars of where he was and those he was with on the date and time of the incident. That the alibi was not investigated at all is most dumbfounding and disappointing. This is typical of the state of the Nigerian Police, which most often bungle investigation of serious offences either out of deliberateness or sheer lack of knowledge and experience. This situation rather than abate, keeps getting worse with nothing serious being done by those in authority. Rather they take pleasure in lampooning the Courts and Judicial officers when criminals escape justice and punishment they richly deserve as a result of the loophole in investigation.

However, as earlier on noted elsewhere in this judgment, whether or not non investigation of alibi will be fatal

to the prosecution’s case depends on the quality of evidence adduced by the prosecution.

In other words, it all depends on whether or not there is direct, positive and credible evidence which the Court believes that pins the accused person to the scene of crime and commission of the offence.

The appellant testified in his defence. In his extra judicial statement (Exhibit P4) even though he gave the names of those he was with on the date and time of the incident he merely stated that those people saw him at the burial ceremony. He also did not give details of his role at the ceremony, nor did he state the relationship between him and the bereaved at whose instance he attended the burial ceremony. Now, taking advantage of the fact that his alibi was not investigated he decided to embellish his alibi story with details contained in his evidence in Court, such as, that it was the burial ceremony of a relation, that he was in charge of the chairs and sharing food. He also now claimed that he, DW1 and DW2 who in his statement (Exhibit P4) only saw him at the burial ceremony converged at the place of burial ceremony at about 3pm.

DW1 claimed under cross-examination that he and the appellant are neither related nor are they friends. However, in his evidence in chief he told the Court that he was with the appellant when he was arrested. This to my mind is too much of a coincidence. They were together at the burial ceremony, according to their evidence, till the early hours of the following day, 1st July. And they were still together at about 4 – 5pm the following day when the Appellant was arrested. It is obvious to me that the Appellant and DW1 are either related or are friends. And of course, as stated they are from the same village. On his part, DW2 admitted under cross examination that he and the Appellant are related and come from the same village, Awo-Akpali.

It is clear to me that the said DW1 and DW2 offered themselves to be called as witnesses to boost the Appellant’s alibi story, since same had not been investigated by the police.
On a careful consideration of the evidence of PW2 vis a vis the evidence of the appellant and his witnesses, I have no doubt in my mind that the evidence of PW2 quite profoundly and positively pins the appellant to the scene of crime

and its commission. The evidence of PW2 is supported by the evidence of PW3 who told the Court that on the night PW2 was taken to the police station he was able to say repeatedly that Alfred was his attacker.
The case at hand is akin to the case of Etim Etim Udo V. The State (2018) LPELR – 43707 (SC) where it was held, inter alia:
“For emphasis, it has to be said that it is not in all cases where the police fails to investigate an alibi such as the case in hand where the alibi was raised timeously that such failure would be taken to have a fatal effect on the case of the prosecution. This is so when the evidence proffered by the prosecution is such that the accused was well at the scene of crime at the material time. In the case at hand the evidence of PW1 was credible and strong enough to destroy the alibi raised by the Appellant and so the fact that the alibi was not investigated is of no moment. See Ayan V. The State (2013) 55 NSCQR 228 – 229; Gachi V. State (1965) NWLR 333; Odidika V. State(1977) 2 SC 21;Yanor V. State (1965) All NLR – 193; Salami V. State (1988) 3 NWLR (Pt85 670 at 677.” Per Peter Odili, JSC (Pp. 18 – 20, ParasE – D).

Similarly in the case of Gabriel Ogogovie V. The State (2016) LPELR – 40501 (SC), the Court, Per Sanusi, JSC, held:
“I must reiterate here, that although failure on the part of prosecution to check or investigate an alibi raised by the accused person may cast doubt on the reliability of the case of the prosecution and may even lead to the acquittal of an accused, however in a situation where there is evidence direct or circumstantial fixing the accused at the scene of the crime, then the prosecution’s failure to check the alibi will not be fatal.” (P. 59, paras D – F).
To recap, the evidence of PW2 supported by that of PW3 which I find to be credible leaves me in no doubt that the non-investigation of the alibi raised by the Appellant is not fatal to the respondent’s case.

Therefore, I find no reason to disturb the finding of the trial Court that it was the Appellant who attempted to kill PW2. I so hold.

What remains to be considered is whether the respondent also established that the Appellant knew or had reason to know that death would be the probable cause and not

only the likely consequence of his act.

The Appellant’s counsel clearly treated this ingredient together with the ingredient which requires the prosecution to prove that the attempt to cause the death of PW2 was the act of the Appellant. As can be seen in Appellant’s counsel’s submission, no separate argument was canvassed on this issue. He leaves me with the impression that he concedes that the nature of the weapons used and the ferocity of the attack shows a clear intention of the attacker to take the life of PW2.

The submission of the respondent’s counsel on this ingredient as contained in paragraphs 4.14 (at pages 12 – 13) of the respondent’s brief of argument cannot be faulted. In other words, I accept the submissions therein.

The learned trial Judge made findings on this last ingredient. It is contained at pages 63 – 64 of the record of appeal. He concluded on the note that the prosecution (herein respondent) proved the requisite intention to cause the death of PW2 beyond reasonable doubt. The findings accords with the evidence adduced by the respondent in the case. I find no basis in law to

disturb those findings.

In the premise of my conclusion on a calm consideration of the arguments canvassed on the ingredients of the offence, it is inevitable to resolve the lone issue in favour of the respondent and against the Appellant.

On the whole, I find this appeal to be unmeritorious. It is hereby dismissed, the result of which is that the judgment of the trial Court delivered on 7th November, 2018 in case No. AHC/9C/2017 is hereby affirmed.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. I agree with the resolution of the sole issue in favour of the Respondent and the consequent dismissal of the appeal.

I affirm the judgment of the High Court of Kogi State, delivered on 7th November, 2018; in Case No. AHC/9C/2017.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before today the lead Judgment just delivered by my leading brother James Gambo Abundaga JCA. I agree with the reasoning and conclusion in the Judgment and I join my brother in dismissing the appeal and affirmed the Judgment of the lower Court.

Appearances:

Joe Abah, Esq. For Appellant(s)

A.O. Ameh, Senior legal officer, Kogi State Ministry of Justice For Respondent(s)