ANEFOK UKPA V. THE STATE (2012)

ANEFOK UKPA V. THE STATE

(2012)LCN/5681(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of November, 2012

CA/L/303/2005

RATIO

CRIMINAL LAW AND PROCEDURE: MURDER: HOW TO PROVE THE CHARGE OF MURDER

In the now notorious case of OGBA VS. STATE, the Supreme Court was reported to have authoritatively held that –

It is well settled that a charge of murder is established when the prosecution proves the following ingredients:

a. That the deceased had died;

b. That the death of the deceased has resulted from the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequences. See (1992) 2 NWLR (Pt. 222) 164 at 198. Per Karibi-Whyte, JSC. See also OMOGODO VS. STATE (1981) 5 SC 5 at 26-27.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

MURDER: IN THE PROVE OF MURDER, THE PROSECUTION HAS THE TASK OF ESTABLISHING THE CAUSE OF DEATH OF A DECEASED PERSON

Now, regarding the second ingredient of the offence, the doctrine is indeed trite, that the prosecution has the onerous task of establishing the cause of death of the deceased person and showing with a reasonable degree of certainty, that it is the act of the accused person that caused the death. See ADEKUNLE VS STATE (1989) 5 NWLR (Pt. 123) 505 at 515, per Nnamani, JSC (of blessed memory).PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: WHERE THERE ARE CONTRADICTIONS IN THE EVIDENCE OF A WITNESS, THE TRIAL COURT OUGHT TO MAKE A FINDING

It is a well settled fundamental principle, that where contradictions are so inherently manifest in the evidence of a witness, the trial court ought to make a finding regarding the said contradictions. See IBE vs. STATE (1997) 1 NWLR (Pt. 484) 632 at 661; ANBI VS. SHOTIMEHIN (1993) 3 NWLR (Pt. 282) 461; MBENU VS. STATE (1988) 3 NWLR (Pt. 84) 615; BABUGA VS. STATE (1996) 7 NWLR (Pt. 459) 279 at 294; EZEMBA VS. IBENEME (2004) 14 NWLR (Pt.894) 617.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

ANEFOK UKPA – Appellant(s)

AND

THE STATE – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the High Court of Lagos State, Ikeja Judicial Division, which was delivered by the Honourable Justice J. A. Oduneye on December 5, 2003 in charge No. ID/28C/96. By the said judgment, the Appellant was convicted and sentenced to death by hanging for the murder of one Daniel Obi. The Appellant was dissatisfied with the conviction and sentence passed there upon by the court below. Thus, he filed the notice of appeal, with the leave of this court.

FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL

On February 2, 1995 at 7.30pm, one Daniel Obi of No 22B Amaechi Lane, Layenka, Ajegunle was allegedly murdered by the Appellant and some other persons. The Appellant was arrested along with some other persons and taken to Police Station Ajegunle, Lagos. On February 5, 1998, three years after the alleged murder was committed, the Appellant and four other persons were formally arraigned before the court below for trial. At page 24 of the record, the pleas of the Appellant and co-accused persons were entered by the trial court thus:

The one court plea charge is read to the accused persons in English Language. They all understand the charge.

1st accused – not guilty

2nd accused – Not guilty

3rd accused – Not guilty

4th accused – Not guilty

5th accused – Not guilty

Eventually, the case proceeded to trial. A total of four witnesses testified for the prosecution namely: (i) PW1 – Obed Obi (ii) PW2 – Emmanuel Obi (iii) PW3 – Inspector Musafiu Lasisi and (iv) PW4 – Dr. Omotobora. The alleged confessional statement of the five accused persons (the Appellant inclusive) were equally tendered and admitted as exhibits A, B, C, D, & E, respectively.

However, on February 28, 2002, the defence deemed it fit to make a no case submission. On October 24, 2002, the trial court delivered a ruling overruling the said no case submission to the conclusive effect, thus:

Therefore rule that the prosecution has made out a prima facie case against all the accused persons. The no case submission is therefore overruled and I call on each of the five accused persons to enter their defence.

Consequent upon which, the Appellant and the co-accused persons testified in their own respective defence. At the conclusion of the defence, the court was addressed by the respective learned counsel. On December 5, 2003, the court below delivered the vexed judgment, to the conclusive effect, thus:

I hold that there is a common purpose or common intention by all, the accused persons. This will make the act of one accused be the act of the other as the offence committed is in furtherance of the prosecution of this unlawful common purpose …

The other four accused (a) William Owodo 1st accused, (b) Ikechukwu Nwaogu – 2nd accused (c) Anefok Ukpa – 3rd accused and (d) Amaike Doripolo – 5 accused are also guilty of the charge of murder of Daniel Obi as they are caught by section 8 of the Criminal Code. They held a common purpose to prosecute an unlawful act.

I therefore sentence all the five accused persons to death by hanging. May the good Lord have mercy on their souls.

As alluded to above, the appeal is against the said conviction and sentence (death by hanging) passed upon the Appellant by the court below. The appeal was filed pursuant to the order of this court duly granted on October 25, 2010. The appeal having been entered, the Appellant’s brief was filed on, but deemed properly filed on. The Respondent’s brief was filed on February 1, 2012. The Appellant’s reply brief was filed on September 26, 2012 but deemed properly filed and served on November 1, 2012, respectively.

On November 5, 2012, when the appeal last came up for hearing the Appellant’s learned counsel adopted the argument in the brief thereof, thus urging the court to allow the appeal, quash the conviction and sentence in question, discharge and acquit the Appellant. On the other hand, the Respondent’s learned counsel equally adopted the brief thereof, and accordingly urged the court to dismiss the appeal, for lacking in merits.

The Appellant has formulated five issues, at pages 5 & 6 of the brief thereof, for determination, viz:

a. Whether the trial court was right in holding that the prosecution had proved the charge against the Appellant/3rd accused beyond reasonable doubt despite the manifest lack of evidence. (This issue is distilled from grounds nine and ten).

b. Whether the trial court was right in convicting and sentencing the Appellant/3rd accused to death on the purported confessional statement which was challenged by the Appellant/3rd accused as being involuntary, same having been extracted under torture and duress. (This issue is distilled from grounds two and three).

c. Whether the trial court was right to have convicted the Appellant/3rd accused and sentenced him to death by hanging despite the age of the Appellant/3rd accused (16 years) at the time of the alleged offence. (this issue is distilled from ground five).

d. Whether the trial court was right in sentencing the Appellant/3rd accused to death and thereby violating his right to life and dignity of Human Person under the Constitution and other international charters to which Nigeria is a signatory. (This issue is distilled from grounds six, seven and eight).

e. Whether the defence of Alibi was available to the Appellant/3rd accused in the circumstances of the case. (This issue is distilled from ground four of the notice of appeal).

The argument on issue No. 1 is contained at pages 6-14 of the Appellant’s brief. The issue is distilled from grounds 9 & 10 of the notice of appeal. In a nutshell, the contention of the Appellant’s learned counsel regarding issue No.1 is to the effect, that the prosecution has failed to prove the charge of murder beyond reasonable doubt against the Appellant. The court is urged to so hold, and accordingly discharge and acquit the Appellant.

The argument of the Appellant on issue No. 2 is covered at pages 14 -20 of the brief thereof. The gravamen of the Appellant’s argument, is that the learned trial judge erred in law in solely utilizing the confessional statement of the accused in convicting the Appellant, as there was a need to have considered other inconsistent facts giving rise to doubt in favour of the Appellant. The court has been urged to resolve the second issue in favour of the Appellant.

The issue No. 3 is argued at pages 20 -21 of the Appellant’s brief. The court has been urged to hold that the failure of the learned trial judge to conduct an enquiry in to the age of the accused amounts to a miscarriage of justice, thus raising doubt as to the competence of the trial. The court is thus urged to resolve the said issue in favour of the Appellant.

The fourth issue is argued at pages 21 – 23 of the Appellant’s brief. It is argued, in the main, that the death sentence passed upon the Appellant has violated his right to life (guaranteed) under the African Charter on Human and People’s Rights. See ABACHA VS. FAWEHINMI (2006) 6 NWLR (Pt. 660) 228 at 292. The court has been urged to so hold, and accordingly resolve the fourth issue in favour of the Appellant.

The last, but not the least, is issue No. 5, which is argued at pages 23 – 25 of the Appellant’s brief. The Appellant thereby urged upon the court to hold that the failure to investigate the defence of alibi raised by the Appellant has raised a reasonable doubt in the case of the prosecution, thus entitling the Appellant to be discharged and acquitted.

On the other hand, the Respondent’s learned counsel has raised a total of five issues in the brief thereof, which turned out to be exactly the same as those raised by the Appellant.

The argument of the Respondent on issue No 1 is contained at pages 5 – 11 of the brief thereof. The main thrust of the submission of the Respondent’s learned counsel on this issue is that the evidence adduced at the trial by the prosecution was not contradictory, but justified the conviction of the Appellant. The court is urged to hold, that the Respondent has proved the conviction of the offence beyond reasonable doubt, thus warranting the court to uphold the decision of the trial court.

On issue No. 2, it was submitted, inter alia, that the Appellant’s alleged confessional statement (Exhibit C) was duly made, and could be relied upon. It was properly admitted in evidence as a free and voluntary confession of guilt by the Appellant, and was fully consistent in itself. That, the Appellant did not object to the admissibility of Exhibit C to necessitate a trial-within-trial to determine the voluntariness thereof. See EFFIONG VS. STATE (1999) 8 NWLR (Pt. 562) 362 at 364; IKEMSON VS. STATE (1989) NWLR (Pt. 110) 455. Thus, the court has been urged to hold that the Appellant has not been able to establish how the decision of the trial court to admit and rely on Exhibit C over-reached the defence in any way.

On issue No. 3, it was submitted, inter alia, that the age of the Appellant not having been in dispute before the court, it was not in issue for the trial judge to inquire into and make a finding thereon.

Thus, the court is urged to resolve issue No. 3 in favour of the Respondent.

On issue 4, it’s contended in the main, that the, provision of Articles 4 & 5 of the African Charter on Human And Peoples Right recognize the inviolability of human beings, and the fact that no man should be arbitrarily deprived of his right except in accordance with due process (of law). And that, the passing of death sentence on the Appellant was in compliance with provisions of the Criminal Code and 1999 Constitution. The trial and conviction of the Appellant were not in any way a denial of his right to life.

The court is urged to so hold.

On issue No. 5, it was contended, without much ado, that the alibi raised by the Appellant should be discountenanced, because it was an after thought. The appellant made a confessional statement admitting the commission of the alleged murder. See section 27(2) Evidence Act, 2004. The alibi was not raised at the appropriate time. See OTITI VS STATE (1993) 4 NWLR (Pt.290) 675, 678.

In conclusion, the Respondent’s learned counsel urged upon the court to dismiss the appeal, for lacking in merits.

Regarding the reply brief thereof, the Appellant has therein responded extensively to some of the issues raised in the Respondent’s brief. However, it appears that the Appellant’s learned counsel merely took an undue advantage to expatiate on the five issues raised in the brief thereof. That’s not allowed under the rules of this court.

The Appellant has urged the court in the reply brief thereof, that the appeal be allowed, and the conviction and sentence passed there upon be set aside.

I have accorded a very critical, albeit dispassionate, regard upon the submissions of the learned counsel in their respective briefs of argument vis-a-vis the record of appeal, as a whole.

For the purpose of determining the appeal, I have deemed it expedient to adopt the Appellant’s five issues, mutatis mutandis.

ISSUE NO. 1

The first issue raises the vexed question of whether the trial court was right, in holding that the prosecution had proved, beyond reasonable doubt, the charge against the Appellant (3rd accused), despite the alleged manifest lack of evidence. The issue was indicated to have been distilled from grounds 9 & 10 of the notice of appeal.

As alluded to above, the charge against the Appellant and the 4 co-accused persons thereof was contrary to section 319 of the Criminal Code Law, Laws of Lagos State, 1994, as amended. It is trite, that by virtue of the provisions of section 36(5) of the 1999 Constitution, as amended-

“Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

It’s equally provided under section 138(2) of the Evidence Act that –

The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 141 of the Act, on the person who assists it, whether the commission of such act is or not directly in issue in.

Undoubtedly, the above fundamental constitutional principles have been eloquently reiterated by the Supreme Court, and court of Appeal a like, in a plethora of authorities. In one of such authorities, this court was recorded to have aptly held, inter alia, that –

The combined effect of section 138(1) of the Evidence Act and section 36(5) of the 1999 Constitution is that under the Nigerian (adversarial) Judicial system, the prosecution was a fundamental duty of proving its case beyond reasonable doubt against an accused person other wise the trial is vitiated and the accused person ought to be discharged and acquitted.

See CHUKWU VS THE STATE (2007) 13 NWLR (Pt. 1052) 430 at 456 paragraphs E-G; 456-457 at G-B, respectively, per Saulawa, JCA. See also ALAKE VS STATE (1991) 7 NWLR (Pt. 205) 567; UKPE VS. STATE (2001) 18 WRN 84; AFAN VS. STATE (1991) 2 NWLR (Pt.172) 127; BAKARE VS. STATE (1987) 1 NWIR (Pt. 52) 579; EDET VS. FRN (2000) 18 WRN 13, respectively.

In the now notorious case of OGBA VS. STATE, the Supreme Court was reported to have authoritatively held that –

It is well settled that a charge of murder is established when the prosecution proves the following ingredients:

a. That the deceased had died;

Regarding the first ingredient of the offence of murder, I think both the prosecution and the defense are ad idem, that the death of one Daniel Obi had indeed occurred on the February 1, 1995 at Ajegunle, Lagos in question. The evidence of PW1, PW2 and PW4 bear eloquent testimony to that obvious, and rather incontrovertible fact. Thus, the first ingredient of the charge of murder in question could rightly be said to have been proved beyond reasonable doubt by the prosecution.

Instructively, in the instant case, there was no eye witness at all. However, the PW3 seemed to be the prosecution’s so called star witness. His evidence, most unfortunately, appears to be rather inconsistent and contradictory. In his examination in chief, the PW3 told the court that when the case file was transferred thereto, he visited the scene of crime and that:

At the scene of the crime I found cassava that is being dried. I saw blood stain on the grounds at Amaechi Lane, Ajegunle which is a pedestrian lane. (See page 57 lines 20 -23 of the record).

However, rather curiously, under cross examination, the PW3 admitted, inter alia, that he visited the scene of crime five days after the murder was committed. As if that was not incredible enough, he confessed that –

“It was the former IPO Cyril John who told me this.”

See page 59, line 19 of the record.

Thus, in the light of the obvious contradictions inherent in the testimonies of the PW3, both in examination in-chief and under cross examination, there is every cogent reason for the court to have come to the conclusion that the PW3 could hardly be regarded as a witness of truth. His evidence is at best a hearsay, which ought not to have been relied upon by the trial court at all.

Most particularly, in the later case of EZEMBA VS. IBENEME (supra), the Supreme Court was reported to have aptly and rather emphatically held that-

No witness who has given on oath two inconsistent evidence is entitled to the honour of credibility.

Such a witness does not deserve to be treated as a truthful witness, at 654, per Edozie, JSC.

In the circumstance, both issues 1 & 2 ought to be, and same are hereby resolved in favour of the Appellant.

ISSUE NO. 3.

The 3rd issue raises the very vexed question of whether, or not, the trial court was right to have convicted the Appellant (3rd accused) and sentenced him to death by hanging despite the age of the Appellant put at 16 at the time the alleged offence was committed (in February 1995). The 3rd issue in question was distilled from ground 5 of the notice of appeal.

As alluded to above, the present Appellant was the 3rd accused person in the ranking of the five accused persons that were arraigned, tried, convicted, and sentenced to death under the one count charge of murder, contrary to section 319 of the Criminal Code Law of Lagos State (supra). The alleged confessional statement of the Appellant was admitted at the trial court as Exhibit C. I have deemed it expedient to reproduce, in verbatim, the contents of the said Exhibit C as follows:

EXHIBIT ‘C’

ID/28C/96:

The State Vs. W. Owodo & 4 Ors.

THE NIGERIA POLICE

STATEMENT OF WITNESS/ACCUSED

S.I.I.B. Yaba Station

” ” “province

Name: Anefiok Ukpa Nationality/Tribe Nig/Akwa Ibom

Age 17 occupation student. Religion Christian

Address 8/12/ Amechi Street Ajegunle, Lagos…

I Aneftok ukpa, after I have been duly charged and cautioned in English…

I voluntarily elect as follows: That I am a student living at the above address with my parents. I was born seventeen years ago, to the family of Ukpa in Lagos and who hail from Akwa Ibom State.

I attended Oroju Primary School and left in 1991. I am presently in 221 at Oluwa Memorial Secondary School …

The testimonies of the Appellant in defence thereof could be found at pages 99 – 100 of the record. At page 99 of the record, the Appellant testified on oath thus:

My names are AnefIok Ukpa, I live at No. 8 Amechi Street, Ajegunle, Lagos. I am a student of Oluwa

Memorial Secondary School. I was in SS1 when I was arrested…

However, under cross-examination, at page 100 of the record, the Appellant stated, inter alia thus:

I was 16 in 1995. I did not write any statement. I did not say anything to the policeman but he asked me where I was living. The only thing I told the IPO was my age and address. I can read and write …”

Thus, from the above pieces of evidence, it’s become rather obvious, that the fact that the Appellant had put his age at 16 at the time the offence was committed in 1995 (which has therefore become in issue) is not in doubt.

The fact that the present Appellant had made his age (17 years vide Exhibit C) or in testimony in defence thereof (16 years) is not in doubt. Thus, it behoves upon the trial court to make an investigation with a view to ascertaining the veracity, or otherwise, of the Appellant’s assertion regarding the true age thereof. See OKARA VS. STATE (1998) 4 NWLR (Pt. 544) 111 at 125, wherein it was aptly held, inter alia, that –

To be on the safe side, the provision of section 208 of the criminal procedure Act (which is in para material with section 208 of the Criminal Procedure Law of Lagos state) must be adhered to strictly in order to prevent a miscarriage of justice.

Thus, I have every cogent reason to up hold the submission of the Appellant’s learned counsel, to the effect that –

In the instant case, failure of the trial court to have conducted an inquiry as to the age of the accused (Appellant) amounts to a miscarriage of justice and raises doubt in the prosecutions case. And I so hold.

What’s more, the provision of section 319(2) of the Criminal Code Law of Lagos State, 1994 has lent a credence to the fact that –

Where an offender who in the opinion of the court had not attained the age of seventeen years at the time of the offence was committed has been found guilty of murder, such offender, shall not be sentenced to death but shall be ordered to be detained during the pleasure of the Governor and upon such an order being made.

Most unfortunately, however, the lower court had obviously failed, for reasons best known thereto, to strictly abide by the unequivocal obligatory provisions of section 319(2) of the Criminal Code Law of Lagos State. For the avoidance of doubt, it must be reiterated that the above two provisions of the Laws in question, are not discretionary but rather mandatory. The lower court ought to have strictly adhered thereto in order to prevent a wanton miscarriage of justice. See OKARA VS. STATE (supra) at 125.

That being the case, therefore, the present Appellant is most undoubtedly, entitled to the benefit of doubt. See YOUNGO VS. COP (1992) 8 NWLR (Pt. 257) 36, where in the supreme court emphatically, and rather authoritatively held, inter alia that-_

It is uncontestable that an accused person is always entitled to the benefit of doubt. Per Kutigi, JSC (as he then was) at 57.

In the circumstance, the answer to issue No 3 is inevitably in the negative, and same is hereby resolved in favour of the Appellant.

ISSUE NO. 4

The fourth issue raises the question of whether, or not, the trial court was right in sentencing the Appellant to death, thereby violating his right to life and dignity under the 1999 Constitution and other international charters, to which Nigeria is signatory. The said issue No. 4 is distilled from grounds 6, 7 & 8 of the notice of appeal.

I would want to believe, that having resolved issues 1, 2 & 3 in favour of the Appellant, it amounts to a sheer wasteful academic exercise to dissipitate so much unnecessary energy and effort in determining the 4th issue on the merits. And I so hold.

ISSUE NO 5

The 5th issue, as it were, raises the vexed question of whether, or not, the defence of alibi was available to the Appellant in the circumstances of this case. The said issue has been distilled from ground 4 of the notice of appeal.

In the instant case, it’s in evidence that the Appellant, as DW3, had retracted the alleged confessional statement thereof, admitted as Exhibit C. Apart from the alleged confessional statements of the four co-accused persons thereof, admitted as Exhibits A, B, D & E respectively, there was no any independently cogent evidence to corroborate the veracity of the said Exhibit C, attributed to the Appellant.

Most unfortunately, no effort was made by the trial court to cause the said Exhibit C to be verified before relying on same to convict and sentence the Appellant to death.

That was most tragic, indeed. Yet, the Appellant had in his testimonies, both in examination in chief and under cross-examination, maintained that he was not at the scene of crime at the material time the said Daniel murdered. According to the Appellant:

On the 18/1/95, my mother asked me to go and stay with my aunty. Where I go to school. On 2/2/95, I went to my mother to collect money. on my way, I saw people running and a man in mufti just grabbed me and others and dragged us into a vehicle I saw so many people. We were then driven to the police station. I was bailed out by my mother. I was then asked to report at the Ajeromi Police Station from where I was taken to Panti Police Station where I was detained.

I was questioned about the murder case and I told the police that I know nothing about the case. I wrote a statement but it was torn by the IPO who slapped me and asked me to write another statement which I did.

This statement was torn again by the IPO who said I should write for the 3rd time. The IPO again torn the statement and started to beat me. He brought a baton (sic) and he hand cuffed my hands. He used the baton to hit all my joints. I fell on the floor.

The IPO stand to write and he then asked me to sign.

I wanted to read what he wrote but he insisted that I should sign but I refused. He started again to beat me and … I insisted that I would not sign. He then brought out a gun and he said he would kill me if I refused to sign and I was afraid.

He asked me what is this. I told him it was a gun. He said he would use it to kill me and tell my parents that I was trying to escape and that was why I was killed. I then started to beg him not to kill me.

He now corked the gun. He opened the door and told me that was the way he was going to kill me. He asked me to sign and then I signed. I was not taken before any police officer.

Again, under cross examination, the Appellant maintained that he –

“was 16 in 1995″.

And that he-

Did not write any statement … did not say anything to the police man … the only thing I told the IPO was my age and address. I can read and write.

In my own estimation, the Appellant has proven to be equally, if not more, fluent and proficient in English than the IPO (PW3). The reason that informed the wisdom of the PW3, Inspector Musafiu Lasisi, not to allow the Appellant to write his own statement under oath, therefore beats one’s imagination!

Invariably’ the term alibi is a Latin derivative, literally denoting ‘elsewhere” Essentially, it’s a defense based on the physical impossibility of a defendant’s guilt by being in a location other than the scene of the crime at the material time the crime (offence) was committed. Thus, simply put, an alibi means the state (or fact) of having been elsewhere when an offense (crime) was committed. See BLACK’S LAW DICTIONARY 9th Edition 2009, at 84. See also EZE VS. STATE (1976) SC 125; ESANGBEDO VS. STATE (1989) 20 NSCC (Pt. 111) 23 at 31; ADEDEJI VS. STATE (1971) 1 ANLR 75, respectively.

The trite fundamental doctrine is that, once an accused has raised a defense of alibi, as in the instant case, it behoves upon the prosecution to endeavour to rebut such a defense or plea, with a view to proving the guilt of the accused person, beyond reasonable doubt. See ESANGBADO VS. STATE (1989) 20 NSCC (Pt. 111) 23 at 31, where in the Supreme Court held, inter alia, thus:

What is the position where an accused has raised a defence of alibi? In that case, the persuasive or ultimate or legal burden remains on the prosecution to establish the guilt of the accused person beyond reasonable doubt Per Nnameka-Agu, JSC (of blessed memory) at 3L. See also ADEDEJI VS. STATE (1971) 1 ANLR 71.

The failure by the prosecution to investigate the veracity or otherwise of the plea of alibi, raised either in the so called confessional statement or testimony of an accused person, tantanmounts to a wanton breach of the cherishingly fundamental right of presumption of innocence accorded the accused under section 36(5) of the 1999 Constitution, as amended. See AZAKI VS. STATE (1991) 21 NSCC (Pt. 1) 79, where in the Supreme Court authoritatively held, inter alia, that –

Where the prosecution fails to investigate the alibi once the accused has discharged his evidential burden then they have left a room for doubt of which ought to be given to the accused”. Per Nnaemeka-Agu, JSC (of blessed memory) at 101.

In the circumstance, the 5th issue ought to be, and same is hereby, resolved in favour of the Appellant.

Hence, in the light of the above far-reaching postulations, and the that fact the 1st, 2nd, 3rd and 5th issues have been resultantly resolve in favour of the Appellant, there is no gainsaying the fact, that the instant appeal is grossly meritorious. The appeal is accordingly hereby allowed by me.

Consequently, the conviction and sentence perversely passed upon the Appellant in charge No. ID/28C/96 by the High Court of Lagos State, December 5, 2003 are hereby quashed. The Appellant shall be, and he is hereby, discharged and acquitted.

AMINA A. AUGIE. J.C.A.: I have read the lead Judgment just delivered by my learned brother, Saulawa, JCA, and I agree with him that the appeal is meritorious. He has addressed all the issues raised in this appeal, and I will only comment on the issue of alibi, which is Latin for “elsewhere”. The defence is based on the physical impossibility of an accused person’s guilt by placing him in a location other than the scene at the relevant time. It also means the fact or state of having been elsewhere when an offence was committed – see Dagawa V. State (2006) 7 NWLR (Pt. 980) 637 SC.

In other words, by raising the defence of alibi, the accused person is saying that he was somewhere else at the time of the crime – see Umani V. The State (1988) 1 NWLR (Pt. 70) 274. And it is settled law that where the defence of alibi has been properly raised by an accused in the course of the investigation of the offence for which he is charged, it is the duty of the Police to investigate it, and for the Prosecution to disprove it. In this case, the Appellant’s defence of alibi was not investigated not to mention disproved by the Prosecution, and the lower Court should have taken that into account and granted him the benefit of doubt, which the law insists must be resolved in favour of the Appellant. It is for this and the other reasons set out in the lead Judgment that I also allow the appeal.

Consequently, I hereby set aside the conviction and sentence of death imposed on the Appellant by the lower Court, and discharge and acquit him.

ADAMU JAURO, J.C.A.: I had the privilege of a preview of the judgment which has just been delivered by my learned brother, I.M.M. Saulawa, JCA.

I am in agreement with the reasoning and conclusion contained in the lead judgment and adopt same as mine.

The appeal is meritorious and is hereby allowed. The conviction and sentence imposed on the appellant are hereby set aside and a verdict of discharge and acquittal entered in his favour.

Appearances

Oluwakemi Balogun For Appellant

AND

Abiola Adeyinka

CSC, Lagos State For Respondent