ASEKERE v. STATE
(2022)LCN/5119(SC)
In The Supreme Court
On Friday, January 21, 2022
SC.321/2015
Before Our Lordships:
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
JOHNSON TITILAYO ASEKERE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE SETTLED LAW ON RAISING A DEFENCE OF ALIBI
On the defence of alibi raised by the Appellant, apart from the fact that the Appellant himself has watered it down, it cannot stand where there is direct evidence countering it, even when it is not investigated. What will be investigated is what is not certain but what is certain needs no further investigation. It is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the alibi. See Per SYLVESTER UMARU ONU, JSC, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR- 270(SC) (PP. 20-21, PARAS. G-C).
This issue is definitely resolved against the Appellant. UWANI MUSA ABBA AJI, J.S.C.
PROVING BEYOND REASONABLE DOUBT ON THE ISSUE OF IDENTIFICATION EVIDENCE
On the issue of identification evidence, the law is trite that whenever a Court is faced with identific ation evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person before the Court was the person who actually committed the offence with which he is charged. There ought not to be a doubtful identification of a culprit.
It must also be stated that Identification Parade is not mandatory for identification in all cases where there has been a momentary encounter with a victim of a crime, especially where there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence, Aliyu v The State [2007] All FWLR (pt. 388) 1123; Alabi v The State [1993] 7 NWLR (pt. 307) 511; Ebenezer v The State [2020] 8 NWLR (pt. 1727) 573. UWANI MUSA ABBA AJI, J.S.C.
A DIRECT EVIDENCE LINKING AN ACCUSED WITH THE COMMISSION OF AN OFFENCE
In law, where there is direct evidence linking an accused with the commission of the offence as in the present appeal where the Appellant was directly identified and fixed to the armed robbery, he can safely be convicted for the commission of the said offence. See Per ONU, J.S.C, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR- 270(SC) (P. 20, PARA. F). The direct and eyewitness evidence of PW1 and PW2 has not been impugned or discredited by the bogus alibi of the Appellant. UWANI MUSA ABBA AJI, J.S.C.
UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The case of the Respondent is that PW1, Titilayo Adeyemo, knew the Appellant through a customer named Sylvester, for about 5 years before the incident because they used to buy goods from her. On 2/9/2011 at about 7 pm to 7:40pm, when there was electricity light, the Appellant with his gang of armed men attacked Mrs. Titilayo Adeyemo (PW1), her daughter and others in the shop of PW1, when he came to buy cigarette. When she bent down to pick the cigarette, she heard a gunshot fired by the Appellant. The Appellant later snatched a bag from her containing a Bible, wrist watch and the sum of N180,000.00, which was by her side. The incident was subsequently reported to the Anti-Robbery Squad. She was asked if she knew any of the armed robbers and she mentioned the name of the Appellant, who was thereafter arrested.
The Appellant’s case however was that he knew PW1 through her daughter (PW2), who used to sell alcoholic drinks at Adeolu Street, Ayedun quarters, Akure, where he used to visit PW2 as a lover. He alleged that he quarreled with PW2, who did not give him attention when he visited her that day because she was talking with another man for about 30 minutes. In another breath, he gave an alibi that he was with his mother in Eleyowo village, where they were tending to their farms on the day of the incident and was impossible for him to conspire with anybody.
The trial Court found the Appellant guilty for conspiracy and armed robbery. The lower Court quashed the conviction on conspiracy but affirmed the conviction for armed robbery, hence this appeal.
ISSUES:
The Appellant’s two issues adopted by the Respondent read thus:
1. Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that the testimonies of PW1, PW2 and PW3 at the trial Court sufficiently demolished the Appellant’s defence of alibi given the varied inconsistencies in the testimonies of both PW1 and PW2.
2. Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that the Respondent has proved the charge of armed robbery against the Appellant beyond reasonable doubt.
I shall condense the two issues into one to be considered thus:
Whether by the testimonies of PW1, PW2 and PW3, the Respondent has proved the charge of armed robbery against the Appellant beyond reasonable doubt.
ARGUMENTS:
The submission of the Appellant’s learned Counsel is that the core evidence of PW1 and PW2 are replete with contradictions and inconsistencies that cannot be relied upon to convict the Appellant. He relied on ADEKUNLE OLUWAFEMI ALO V. STATE (2015) LPELR-24404. Also, that the failure to investigate the timeous and corroborated alibi of the Appellant was fatal to the case of the Respondent. He placed reliance on ADEYEMI V. STATE (2018) ALL FWLR (PT.929) AT 305-306, STATE V. ANI (2009) 16 NWLR (PT.1168) 443. The learned Counsel further submitted that the confessional statement of the Appellant having being made in a language other than English and not signed by him ought not to be relied on to convict the Appellant. Besides, that the six tests for determining the veracity of a confessional statement was not followed by the lower Court in affirming the conviction of the Appellant. He urged this Court to resolve the two issues in favour of the Appellant and to allow the appeal and set aside the decision of the lower Court.
The Respondent’s learned Counsel submitted on the other hand that the defence of alibi is always demolished where the prosecution adduces evidence to fix the accused person to the scene of the crime. He quoted in support SHEHU V. STATE (2010) 2-3 SC (PT.1) 158, IKUEPENIKAN V. STATE (2011) 1 NWLR (PT. 1229) 499.
He maintained that the evidence of PW1 and PW2 pinned the Appellant to the scene of the crime thereby rendering futile his alibi. He asserted that the direct evidence of PW1 and PW2 on the identification of the Appellant as one of the persons that robbed them was direct, positive and credible to prove ingredients of armed robbery against the Appellant. He prayed this Court to dismiss the appeal.
RESOLUTION:
The ingredients of the offence of armed robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. The elements above have to co-exist and established beyond reasonable doubt. See AWOSIKA VS THE STATE (2010) 9 NWLR (PT. 1198) 40 AT 71-73.
The Appellant as usual, denied the armed robbery and introduced alibi. Hence, the need for the Respondent to prove the commission of the crime against him. In proving armed robbery against the Appellant, the 3 ways of proving a crime in Court must be resorted to, which are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) Circumstantial evidence. See Per NGWUTA, JSC, in BILLE V. STATE (2016) LPELR- 40832(SC) (P. 15, PARAS. A-B).
The direct/eyewitness evidence of PW1 to the police was repeated in her oral testimony to the Court when at pages 18-19, she stated as follows:
…I know the 1st and 2nd accused but I do not know the 3rd accused. I have known the 1st and 2nd accused for at least five years. The two were coming to buy goods from me. I know them through another customer who introduced them to buy from me. The person who linked me with the 1st and 2nd accused was an Ibo man Sylvester. I remember 2nd September, 2011. It was around 7 pm I was in my shop. There were some other people in the shop that time we were up to four people. Tosin Adeyemi was in the shop (sic) she is my daughter. The 1st accused came into the shop. He requested to buy cigarette. I bent down to take the cigarette he requested for… l heard a gunshot. It was Tosin Asekere that fired the gun. I fell down. The first accused put on a muffler and a black overall that day. He also said Ave! Ave! and the 2nd accused also was present that night. He also said Ave! Ave! The 1st accused then snatched my handbag which was beside me. There were at least six of them that night. There was electricity in my shop that night. There was N180,000.00 in the bag. It was a contribution I collected. There was a Bible, my wristwatch and other things in the bag that the 1st accused snatched from me that night…
The above oral testimony in Court did not derogate or contradict her statement to the police contained at pages 7- 8 of the record, Under cross examination at page 19, she affirmed inter alia thus:
…I have had other customers before the 1st accused came to my shop at 7 pm. I shut down after the robbers left… l am certain that the 1st accused was among those who robbed me. He shouted Ave! Ave! and the others rushed to my shop. There was girl among the robbers but I did not see her face… l am only certain of the presence of the 1st and 2nd accused among the robbers. I cannot identify the others… The 1st accused… was the person who took my bag…
PW2, Tosin Adeyemi, at pages 21-22 of the record testified in Court as follows:
I got to know the 1st accused about three to four years ago when he was coming to my mother’s shop… The 1st accused was coming to visit Sylvester at our area and I became acquainted with him. 1st accused had been coming to our shop before the day of the incident… I was eating when the 1st accused came to ask for Benson cigarette my mother PW1 was trying to sell the cigarette to the 1st accused when there was a gunshot. The 1st accused then shouted Ave! Ave! and some other people came to where we were. The 1st accused dressed in mafia dress and he had a red beret on that night. The 2nd accused was one of those who came to our shop… l have known him for a long time at Ayedun quarters where we live. The bag of my mother was taken… There was electricity that night. I know they were between six and eight that came that night. There was a woman among them. She put on a two quarter trouser and a top and she had a cross bag on her body. But I cannot identify her.
Under cross examination at page 22, she debunked her love affairs with the Appellant and further revealed amongst others that “The 1st accused had never proposed to be my lover…l have a fiancé and he was present that night. My fiancé did not give statement to the police… I have no issue of any kind with the 1st accused that will make me to lie that he committed armed robbery. The 1st accused never talked to me about love let alone asking me to be his wife…”
On the investigation of the alleged alibi put up by the Appellant, PW3 testified at page 27 of the record thus:
…We went to Eleyowo without the 1st accused to investigate the alibi of the 1st accused. He gave us address of his mother at Eleyowo. We did not see the mother of the 1st accused to interview. The mother of the 1st accused later came to us at the office. That was when we wanted to charge the case to Court. The mother of the 1st accused did not categorically say that the 1st accused was with her on the day the robbery took place…
I must not gloss over the defence of Alibi by the Appellant. His alibi was corroborated by his sister as DW1 and his mother as DW2. See pages 31-33 of the record. They both affirmed that the Appellant was with them at Eleyowo in the farm when the armed robbery took place. The trial Court at pages 100-102 considered the alibi of the Appellant vis-a-vis the evidence of DW1, DW2 and DW2 and found them unreliable and unsupportive to the case of the Appellant.
I have considered also the judgment of the lower Court on the defence of alibi put forward by the Appellant at page 200. The lower Court also emphasized on the strength of the evidence of PW1 and PW2 pinning down the Appellant to the scene of the armed robbery to demolish the alibi of the Appellant. An alibi is not one of the ways of proving a crime but a defence available to the accused. Thus, it is not a direct or eyewitness account except the circumstances prove it so. It is mostly a circumstantial evidence that must always bow and subject itself to an uncontradicted and credible evidence of an eyewitness or direct evidence.
I make bold to state here that the Appellant has shot himself on the foot when he raised the defence of alibi and co-opted others to corroborate it. Their testimonies are but a farce and a mockery of evidential and factual prove of a crime. Whether the Respondent investigated the Appellant’s alibi or not is not relevant or worth considering.
At page 9 of the record, the Appellant made his statement to the police that “On the second of September 2011, I was with my mother at Eleyeowo, I went there to help my mother in her farm work and I came back to Akure on the 18th of September 2011.” There is an adage in Hausa that says “if he that spoken a thing is a fool, the hearer is not a fool like him.” Subsequently at pages 35-36 of the record, wherein the Appellant testified in Court, he exposed amongst others that “I later went to PW’s shop one evening to see PW2. I saw PW2 talking to a man. The man was a timber lorry driver. The man apparently was dating PW2. I asked PW2 what was the matter. She said everything was alright. PW2 said I should let her have her phone. I gave it to her, She was talking with other man without giving me any attention. This was on for about thirty minutes. I became angry and I went to PW2 to collect my phone. She did not want to give it to me, I snatched it from her. As I was going, PW2 held my shirt. My shirt got torn. I slapped PW2. PW2 then held me. PW1 now came to where I and PW2 were struggling. PW1 was pushed. She fell down and she dislocated her limb.
I was at Eleyowo village on 2nd September, 2011. I was with my mother and we were tending to our farms…”
The Appellant cleverly introduced a strikingly, contrary and contradictory evidence from the alibi he earlier alleged in his statement to the police, supposedly to extricate himself from the alleged offence. The law is trite that once an accused person’s confessional statement is voluntary and true but inconsistent with his evidence in Court, a Court may convict. See Per OLABODE RHODES-VIVOUR, JSC, in JAMES SIMON V. THE STATE (2017) LPELR- 41988(SC) (PP. 17-19, PARAS. F-A).
Furthermore, where there is direct evidence linking an accused with the commission of the offence, he can safely be convicted for the commission of the said offence. See Per ONU, JSC, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR-270(SC) (P. 20, PARA. F). The evidence of PW1 and PW2, being direct and positive have indeed proved the guilt of the Appellant beyond reasonable doubt. Thus, in the order of priority of evidence to prove a crime after confessional statement, direct evidence is superior to circumstantial evidence. This was emphasized in ADIO V. THE STATE (1986) 2 NWLR (PT.24) by per Oputa JSC.
In law, where there is direct evidence linking an accused with the commission of the offence as in the present appeal where the Appellant was directly identified and fixed to the armed robbery, he can safely be convicted for the commission of the said offence. See Per ONU, J.S.C, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR- 270(SC) (P. 20, PARA. F). The direct and eyewitness evidence of PW1 and PW2 has not been impugned or discredited by the bogus alibi of the Appellant.
On the defence of alibi raised by the Appellant, apart from the fact that the Appellant himself has watered it down, it cannot stand where there is direct evidence countering it, even when it is not investigated. What will be investigated is what is not certain but what is certain needs no further investigation. It is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the alibi. See Per SYLVESTER UMARU ONU, JSC, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR- 270(SC) (PP. 20-21, PARAS. G-C).
This issue is definitely resolved against the Appellant.
The appeal grossly fails and is hereby dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I agree with my learned brother UWANI MUSA ABBA AJI, JSC, that this appeal completely lacks merit. The appellant insists on an alibi. The evidence on record puts him at the scene of the crime beyond contention. I adopt the fuller reasons given in the lead judgment to dismiss the unmeritorious appeal.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Abba Aji, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal lacks merit. It therefore deserves to be dismissed. I propose to add only a few observations on:
a. Concurrent findings;
b. Identification evidence; and
c. Contradictions in evidence.
As a matter of Practice, the Supreme Court is always hesitant to interfere with or disturb the concurrent findings of the trial Court and the lower Court, except where such findings are perverse, or misapplication or misconception of law is prevalent, Bassey v The State [2019] 12 NWLR (pt. 1686) 348, 376; paragraphs E-G; Iyaro v The State [1988] 1 NWLR (pt. 69) 256; Onitilo v The State [2018] 2 NWLR (pt. 1603) 239.
In this case, both Courts were concurrent in finding the appellant guilty of Armed Robbery despite his defence of alibi. The onus therefore lies on the appellant to give very good reasons why this Court should interfere in the findings arrived by the two lower Courts, Muhammad v The State [2017] 13 NWLR (pt. 1583) 386; Jibrin v Federal Republic of Nigeria (2018) LPELR-43844(SC). As Ademola, CJN, rightly observed in the case of Omisade v The Queen [1964] NSCC (Vol. 3) 170 “…it is not the function of this Court to retry a criminal case on appeal.”
He further stated that: “if there was evidence before the trial Judge from which he could reasonably have come to the conclusion which he did, the verdict must stand.”
In the instant case, the appellant has not furnished the Court with any exceptional circumstance o r reason at all as to warrant interfering with the concurrent findings of both lower Courts.
On the issue of identification evidence, the law is trite that whenever a Court is faced with identific ation evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person before the Court was the person who actually committed the offence with which he is charged. There ought not to be a doubtful identification of a culprit.
It must also be stated that Identification Parade is not mandatory for identification in all cases where there has been a momentary encounter with a victim of a crime, especially where there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence, Aliyu v The State [2007] All FWLR (pt. 388) 1123; Alabi v The State [1993] 7 NWLR (pt. 307) 511; Ebenezer v The State [2020] 8 NWLR (pt. 1727) 573.
On the issue of contradictions, it must first be stated that whether there were contradictions in evidence of witnesses, it is primarily the duty of the trial Court to determine, and if there were, it is that Court’s duty to advert to them and take them into consideration in the evaluation of the credit of the witnesses, Igbi v State [2000] 3 NWLR (pt. 648) 169. Furthermore, it is not in all cases that once the defence avers contradictions or conflicts in the evidence of prosecution, that same is fatal to the prosecution’s case, John Agbo v The State [2006] 1 SCNJ 332, 342; The State v Danjuma [1997] 5 N WLR (pt. 506) 512. Contradictions in evidence which do not affect the substance of the issue is irrelevant. The contradiction that would make an appellate Court disbelieve the prosecution witnesses must be on a material point in the case, capable of upturning the decision of the trial Court. Minor or miniature contradictions which do not touch on any of the ingredients of the offence charged will not be of any moment, Enahoro v The State [1965] NSCC (Vol. 4) 98, 113; Isibor v The State [2002] 4 NWLR (pt. 758) 741; Sele v The State [1993] 1 NWLR (pt. 269) 276; Jimmy v The State [2013] 18 NWLR (pt. 1386) 229. In this case, the contradictions that the appellant alleges are only mere discrepancies in the accounts and testimonies of PW1 and PW2 for which no serious premium deserves to be placed on same.
It is for these, and the more elaborate reasons in the leading judgment, that I too shall enter an order dismissing this appeal as unmeritorious.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, JSC. I am completely in agreement that the appeal is devoid of merit and should be dismissed.
This is a case of armed robbery wherein two of the prosecution witnesses, one of whom was the victim, clearly identified the Appellant who was well known to them. The prosecution witnesses stated that there was electricity in the shop where they were attacked by the Appellant leading a gang of other people.
Not only that, the prosecution witnesses who were eye witnesses to the crime mentioned the names of the Appellant and one other person at the earliest opportunity to the Police.
The Appellant raised the defence of alibi which was adequately investigated by the Police. I find no reason to upset the findings of the trial Court who had the opportunity of hearing and seeing the prosecution witnesses and who believed their own version of the story rather than the version of the Appellant and his witnesses who swore that he was on the farm on the day in question. Where an eyewitness evidence directly and unequivocally pins the Defendant to the scene of crime at the time the crime was committed, the alibi cannot be a viable defence to the crime. In this case, the alibi of the Appellant supported by his mother and younger sister was completely demolished by the eyewitness evidence of PW1 and PW2 who were victims of the crime and who knew the Appellant well before the date of the offence. In the circumstance, this appeal fails. It is hereby dismissed.
The judgment of the Court below is affirmed with its order of conviction and sentence imposed on the Appellant.
Appeal Dismissed.
ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is unmeritorious and ought to be dismissed.
I adopt the said judgment as mine and join my learned brother in dismissing the appeal.
Appearances:
Dr. Oladoyin Awoyale, Esq., with him, Nduwueze Anyanma, Esq., Abubakar Hussaini, Esq. and Gabriel Amupitan, Esq. For Appellant(s)
Akinola Oladeji, Esq. For Respondent(s)
