AMAS OBAZEE v. THE STATE
(2019)LCN/13121(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/B/401C/2016
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
AMAS OBAZEE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE PRINCPLES GOVERNING THE DEFENCE OF ALIBI
The principles governing the defence of alibi are settled in law but have limitations.
Tobi JSC in SULE DAGAYYA V THE STATE (2006) 25NSCQR 775 at 800-801 explained the limitation of principle thus: The defence of alibi crumbles the moment the prosecution gives superior evidence, that is more believable evidence than that of the accused by fixing permanently the accused person not only at the scene of the crime but also in the commission of the crime, in a way that if a photograph was taken at the time or point of the actus reus of the accused, it will clearly show or depict him ?in romance? with the crime he is charged with. See also BALOGUN V A-G OGUN STATE (2002) 6NWLR (PT. 763) 512; SOWEMIMO V STATE (2004) 11NWLR (PT. 885) 515.? PER AWOTOYE, J.C.A.
WHETHER OR NO TTHE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
Now, findings of fact made by a trial judge are sacred unless found to be perverse.
According to ARIWOOLA JSC in ANEKWE V STATE (2014) LPELR -2288 1(SC)
?Generally and there is no doubt that it is not the function of an appellate Court to disturb the findings of facts of the trial Court, the exception being when such findings are shown to be unreasonable or perverse and not a result of proper exercise of judicial discretion. NTIARO V AKPAN 3 N.L.R. 9 at 10? see also IBHAFIDON V IGBINOSUN (2001) 8NWLR (PT. 716) 653 where KARIBI ? WHYTE JSC had this to say
?It is a well established principle that an appellate Court will very rarely if at all, interfere with the findings of facts made by the trial Court. This is because such findings of facts enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses reactions and assessment of the veracity of their testimony. Accordingly such findings ought to be accorded due respect in appellate Court which did not have the advantage of the trial judge. PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant to challenge the decision of the Edo State High Court delivered on 22/3/16.
The Appellant was the 2nd accused Charge No. B./CD/241C/2013 at the lower Court.
The Charge against the appellant at the lower Court reads thus:
?COUNT I
That you Osaigbokan Idemudia, Amas Obazee, Ozeigbe Matthew, Esosa Idemudia and Ikponwonsa Idemudia on or about the 23rd day of October, 2012 at Saint Saviour, Benin City in the Benin Judicial Division, did conspire amongst yourselves to commit a felony to Wit, Armed Robbery and thereby committed an offence contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearm (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.
COUNT II
That you Osaigbokan Idemudia, Amas Obazee, Ozeigbe Matthew, Esosa Idemudia and Ikponwonsa Idemudia on or about the 23rd day of October, 2012 at Saint Saviour, Benin City in the Benin Judicial Division, did rob on Glory Ojo of her gold necklace, two Nokia telephones,
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and a sum of N9,500 (Nine Thousand Five Hundred Naira only) and at the time of said Robbery you were armed with an offensive weapon to Wit: Gun and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and firearm (special provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.
COUNT III
That you Osaigbokan Idemudia, Amas Obazee, Ozeigbe Matthew, Esosa Idemudia and Ikponwonsa Idemudia on or about the 23rd day of October, 2012 at Saint Saviour, Benin City in the Benin Judicial Division, did rob one Osaigbokan Ikuobase the sum of N11,500.00 (Eleven Thousand Five Hundred Naira only) one Nokia phone and one Samsung phone and at the time of the said Robbery you were armed with an offensive weapon to Wit: Gun and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearm (Special Provisions) Act Cap RII, Laws of the Federation of Nigeria 2004.?
Pleas of the Appellant as well as other accused persons were taken, the learned trial judge after hearing the parties entered judgment against the appellant inter lia as follows?
?I also find the 2nd accused NOT GUILTY in
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counts 1 and 3.
I however find the 2nd accused GUILTY as charged in counts 2.
1st, 3rd, 4th and 5th accused persons are discharged and acquitted in all the counts.
2nd accused is discharged and acquitted in counts 1 and 3.
2nd accused is however convicted in count 2.?
Dissatisfied with the above judgment, the appellant vide his notice of Appeal filed on 14/4/2016 challenged the decision on one ground ?that the judgment is against the weight of evidence.?
After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.
ARGUMENT OF COUNSEL
Appellant brief of argument was settled by his counsel PATRICK A. WILSON learned appellant?s counsel donated one sole issue for determination to wit:-
WHETHER THE TRIAL JUDGE ERRED IN LAW WHEN HE HELD THAT THE DEFENCE OF ALIBI WILL NOT AVAIL THE APPELLANT.
Wilson for the appellant submitted after having discharged and acquitted the appellant in counts 1 and 3 and the 1st, 3rd, 4th and 5th accused persons in the same count, the lower Court was wrong to have convicted the appellant on count 2 of the same
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charge.
He contended further that the defence of alibi raised by the appellant was not investigated as required by law. He cited TAOFEEK OYEBOLA V STATE (2008) ALL NLR (PT 402) p. 1178.
He argued that the defence of alibi was complete once an accused person disclosed to the police his whereabouts without more at the time of the commission of the alleged crime. He posited that the appellants raised the defence of alibi timeously when he was arrested and during trial. He referred to pages 1-17 of the record of appeal. This was not investigated.
In further argument learned counsel submitted that the police did not testify that they investigated the defence of alibi raised. He asserted that this should create a doubt in the mind of the tribunal which should have been resolved in favour of the appellant. He cited ODILI V THE STATE (1977) 4S.C.1; ADEDEJI V. THE STATE (1971) 1 ALL NLR 75 and NWOGU V THE STATE (1986) 4NWLR (PT. 35) p.538.
He finally urged the Court to allow the appeal.
The Respondents brief of argument was deemed filed on 5/2/10. The brief was settled by EHI UWAIFO Esq. for the Respondent.
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Learned counsel for the
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respondent also formulated one sole issue for determination as follows:
WHETHER THE COURT OF APPEAL SHOULD AFFIRM THE JUDGMENT OF THE TRIAL COURT WHICH HELD THAT THE PROSECUTION PROVED THE CHARGE OF ARMED ROBBERY AGAINST AMAS OBAZEE BEYOND ALL REASONABLE DOUBT BASED ON THE EVIDENCE OF PROSECUTION WITNESSES AND EXHIBITS TENDERED AT THE TRIAL
Learned Defence counsel submitted that the prosecution proved the charge of armed robbery against the appellant beyond reasonable doubt. He asserted that based on the strength of the evidence and the exhibits before the learned trial judge the appellant was rightly convicted. He referred to the provision of S. 1(2a) of the Robbery and Firearms (special provision) Act and submitted that a person who robbed another while armed was guilty of the offence of armed robbery.
?
Learned Respondent?s counsel drew the attention of this Court to the following points:
Emmanuel Ogbe, Omorogbe Osamudiame and Glory Ojo as PW1, PW2 and PW4 identified the appellant after he was arrested by police sergeant David Joseph and brought to the police station by his complexion and the red shirt (Exhibit B) he wore during the
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robbery operation which he was still wearing after the area vigilante group and the police traced him to the house he fled to in Omoregbe and Glory?s home.
The necklace (exhibit C) which was taken from Glory during the robbery operation was found in the appellant?s trousers back pocket.
The appellant was still wearing red shirt (exhibit C) which he allegedly wore when he was arrested.
The appellant in exhibit E claimed that the necklace belonged to his younger brother but in his evidence at the trial he claimed that he was arrested in his underpants (boxer) and that no red shirt was recovered from him.
Learned Defence counsel in respect of the defence of alibi submitted that the prosecution witnesses were able to fix the accused person at the scene of the crime. He cited OSUAGWU V THE STATE (2013) ALL FWLR (PT 672) 1605, and a host of other cases.
He finally urged the Court to dismiss the appeal and affirm the conviction and death sentence passed on the appellant.
R E S O L U T I O N
I have carefully considered the submissions of learned counsel on both sides.
?
Being the issue raised by the appellant
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who is the person aggrieved, I shall determine this appeal based on his sole issue.
ISSUE
WHETHER THE TRIAL JUDGE ERRED IN LAW WHEN HE HELD THAT THE DEFENCE OF ALIBI WILL NOT AVAIL THE APPELLANT.
Should the defence of alibi raised by the appellant have availed him at the lower Court? In resolving this issue it is pertinent to reproduce the unretracted statement of the appellant, which he made on 24/10/12. It reads thus:-
?I am Amas Obazee of the above address. I am a native of Oka-Useni in Ikpoba? Okha local government area of Edo State. I was born into the family of Mr. and Mrs Obazee in the year 1982. I was born and brought up in Benin. I attended my primary school in Ohafia in Imo State. I attended Secondary School though I dropped out of Secondary School. I later proceeded to learn vulcanizing and became independent, that is what I am doing till this moment. My uncle, Pius Idemudia was involved in a case, he was arrested and taken to the police station, he was later taken to Court. Thereafter I received a call that my uncle has been taken to Court hence the decision to see his
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family. That very day I and my brother namely Ozeigbe went there together. When we got to my brother?s house towards evening the day got dark and we decided to sleep in the house. We slept at about 8pm that very day. We did not come out of the house again before the arrival of the police at about 3AM, we discovered that policemen were around, though we did not know that they were police hence we decided to jump into the ceiling. We were five boys in number that slept in the house that very day and it was five of us the police arrested. The apartment is made up of three bedroom flat. I slept in the parlour with two other boys while Ikponmwonsa and Esosa slept in their various rooms. None of us moved out again that very day so I was surprised to be accused of robbery and killing somebody. There was a woman who knew when we entered our apartment that very day, I wore red shirt and blue trouser.
?The allegation that I was identified with the red shirt I wore is not true. I did not robbed the occupants of the house at Musheshe Street and I did not kill the said victim. The silver colour necklace found in our possession belongs to my brother
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Ikponmwonsa was arrested with us. The fact remains that we did not rob nor kill anybody. I have never seen a situation where somebody will kill person and still remain in his compound for him to be arrested. I am not an armed robber and a killer. God knows the best.?
The principles governing the defence of alibi are settled in law but have limitations.
Tobi JSC in SULE DAGAYYA V THE STATE (2006) 25NSCQR 775 at 800-801 explained the limitation of principle thus:
?The defence of alibi crumbles the moment the prosecution gives superior evidence, that is more believable evidence than that of the accused by fixing permanently the accused person not only at the scene of the crime but also in the commission of the crime, in a way that if a photograph was taken at the time or point of the actus reus of the accused, it will clearly show or depict him ?in romance? with the crime he is charged with. See also BALOGUN V A-G OGUN STATE (2002) 6NWLR (PT. 763) 512; SOWEMIMO V STATE (2004) 11NWLR (PT. 885) 515.?
The evidence of PW4, Glory Ojo is very pertinent on this point I shall quote it in extenso.
4th P.W.
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swears on the Holy Bible and states in English.
My name is Glory Ojo. I live at Upper Sakponba Road, No. 11 off Mosheshe. I am a trader selling drinks biscuits and toys, things as well as recharge cards, I know the accused. On the 23rd October, 2012, I was in my shops at around 12.00 a.m. when I saw someone standing and I started to shout daddy, daddy. The person ordered me to shot up and demanded for my phone and money. I told him I had no money. The other boy started to search and collected N9,500, two Nokia phones with my recharge cards. They went to my fridge and packed all the drinks , leaving only pure water. They left with all the items. The other started to beat me, saying I must give him my phone. I told him that I did not have phone. He took my chain that I was wearing and put it in the back of his trouser. He threathened to shoot me while I was pleading for forgiveness. He left but locked my door from outside. I was able to open the door and came out. I ran to my husband?s door shouting thief. The next thing I heard was gun shot. I saw that the theif had shot my husband?s brother John Osaro Ojo. It was the 2nd accused that
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shot him. 2nd accused is wearing green now. He wore red on that day.
I will recognize my chain if I see it.
COURT: EXH B further identified.
4th P.W. it was the same 2nd accused that took the chain. He used to come to my store to drink.
I made statement to the Police.?
The learned trial judge who saw and heard her believed her evidence.
The evidence of the 4th P.W. which the trial judge believed are to the following effect:
a) She knew the accused (appellant)
b) The appellant used to come to her store to drink
c) It was the appellant that shot her husband?s brother John Osaro Ojo.
d) The appellant wore red on that day
e) She identified the appellant at the police station as one of the robbers
f) She saw the appellant when he shot her husband?s brother.
g) One of the robbers collected her chain.
3rd P.W. Sgt David Joseph also gave evidence as follows:
?On the 23/10/2012, at about 1.00am, I was on patrol with other police men when control room called us to proceed to Musheshe Street, where a robbery incident was going on. On getting to the place, we met some
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Vigilante men led by Emmanuel Ogbe (1st P.W.) who told us that they traced the armed robbers to a house on the same St. Savior and we moved to the house and knocked on the door. A woman answered us. We asked of the boys that just entered the house. She said there was no body in the house. We compelled her to open and we entered the house and discovered that people climbed the ceiling. We pleaded with the boys by shouting for them to come down but they refused. We used tear gas and then five boys came down. They are the accused persons on the dock. We immediately arrested them and took them to SARS office where some of the robbery victims were already waiting for us. The robbery victims identified the five accused persons as the robbers that came to their house earlier in the day. In the victims presence, we asked the accused persons to bring up whatever they had in their pockets. 2nd accused person brought out some items including a necklace. One of the victims identified the necklace as his own. A victim, Joy Osaro also identified 2nd accused by the shirt he had on. I recorded statements from the victims voluntarily. I also recorded statements from two
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vigilante men. I cautioned the give accused persons.?
?The appellant in his own defence gave evidence denying any involvement in the crime. He said thus:
?I did not conspire with anyone to rob and I did not rob anybody.
On the 23rd October, 2012, I was at work when my brother?s wife called me to say the community chairman arrested my brother.
After work, I went to their house. We decided to go to state CID in the morning to see him. I went to bed, only to later hear noise and woke up people were trying to pull the door protector. From parlour, I saw people through into the compound carrying different kinds of weapons. I ran to hide. My uncle?s wife was shouting that she did not know who wants to come to kill her and her children after her husband was arrested earlier. The people entered the house after broking the door, telling my uncle?s wife that they were policemen. My uncle?s wife is the mother of the 1st, 4th and 5th accused persons. Their father is immediate senior to my mother. On hearing that they were police, I felt safe and came down. I was arrested. I had hidden in the ceiling. I saw Emma Ogbe who
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used to join us to town hall meetings. He threatened that my uncle?s arrest was a small thing compared to what he would do to us. I was only wearing boxers when I was arrested and taken to the police station. I was put in a hilux and it drove to a place and stopped. Four policemen came down and entered a house, leaving me behind in the vehicle. They returned and we were taken to the police station. At the station, I made statement but after recording it, the IPO refused to read it to me and hit me on the head, giving me big ? injury.
I was wearing palm slippers from my house but on arrest, I had nothing on my feet.?
The learned trial judge who saw and heard him disbelieved him.
Now, findings of fact made by a trial judge are sacred unless found to be perverse.
According to ARIWOOLA JSC in ANEKWE V STATE (2014) LPELR -2288 1(SC)
?Generally and there is no doubt that it is not the function of an appellate Court to disturb the findings of facts of the trial Court, the exception being when such findings are shown to be unreasonable or perverse and not a result of proper exercise of judicial discretion.
14
NTIARO V AKPAN 3 N.L.R. 9 at 10? see also IBHAFIDON V IGBINOSUN (2001) 8NWLR (PT. 716) 653 where KARIBI ? WHYTE JSC had this to say
?It is a well established principle that an appellate Court will very rarely if at all, interfere with the findings of facts made by the trial Court. This is because such findings of facts enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses reactions and assessment of the veracity of their testimony. Accordingly such findings ought to be accorded due respect in appellate Court which did not have the advantage of the trial judge.?
I have deeply considered the findings of facts of the trial judge when he believed the 4th PW in particular and disbelieved the appellant. I am unable to see anything perverse in it. The statement of appellant (unretracted) i.e. Exhibit E and his evidence in the witness box are on collision course. In one breath in his statement he accepted a silver colour necklace was found in his possession but that it belonged to his brother. In another breath he denied this.
?In his
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statement he said he wore a red shirt and blue trousers but in his evidence he said he wore native dress.
The fact accepted and believed by the learned trial judge convincingly fixed the appellant to the scene of crime and the commission of the crime. The defence of alibi raised by the appellant could therefore not avail him. The defence must collapse.
I see no merit in this appeal.
This appeal is hereby dismissed. The judgment and conviction by the learned trial Judge of the appellant in Charge No: B/CD1241C/13 delivered on 22/3116 are hereby affirmed.
PHILOMENA MBUA EKPE, J.C.A.: I read before now the Judgment of my learned brother, TUNDE OYEBANJI AWOTOYE, JCA, just delivered. I agree that the appeal lacks merit.
The Judgment and conviction by the learned trial Judge of the Appellant in charge No: B/CD/241C/13 delivered on 22/3/16 are hereby affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Tunde Oyebanji Awotoye, JCA.
I completely agree with my learned brother
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that this appeal lacks merit and I hereby dismiss it.
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Appearances:
Patrick A WilsonFor Appellant(s)
Ehi Uwaifoh with him, Matthew IsibohFor Respondent(s)
Appearances
Patrick A WilsonFor Appellant
AND
Ehi Uwaifoh with him, Matthew IsibohFor Respondent