AYO ADEGBITE v. THE STATE(2017)

AYO ADEGBITE v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 30th day of June, 2017

SC.182/2015

RATIO

WHETHER THE PROSECUTION HAS A DISCRETION TO CALL ON THOSE WITNESSES IT REQUIRES TO ESTABLISH ITS CASE; EFFECT OF FAILURE TO CALL VITAL WITNESSES ON THE PROSECUTION’S CASE

Although the burden on the prosecution is to prove its case beyond reasonable doubt, the prosecution has a discretion to call on those witnesses it requires to establish its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence. I have also not come across any rule of law which imposes an obligation on the prosecution to call a host of witnesses in proof of its case. See Adaje v The State (1979) 6 – 9 SC 18: Okonofua v State (1981) 6 – 7 SC 1; Saidu v State(1982) 4 SC 41; Okpulor v State (1990) 7 NWLR (Pt. 164) 581; Ugwumba v State (1993) 5 NWLR (Pt. 296) 660; Udo v State (2006) 15 NWLR (Pt. 1001) 179. However, the law is settled that for the prosecution to prove its case beyond reasonable doubt, it must call vital witnesses whose evidence may determine the case one way or the other. Failure to call such vital witnesses is fatal to the prosecution’s case. PER PAUL ADAMU GALINJE, J.S.C.

ESSENTIAL INGREDIENTS THAT MUST BE PROVED BY THE PROSECUTION TO ESTABLISH A CASE OF MURDER AGAINST THE ACCUSED

The Appellant in this appeal, was charged with the murder of one Theophilus Afolabi, by bathing the deceased with acid. For the prosecution to establish its case, it must prove the following ingredients:- 1. That the death of Theophilus Afolabi has actually occurred. 2. That the death was caused by the Appellant. 3. That the act that led to the death of the deceased was done with the intention of causing death. 4. That the Appellant knew or had reason to know that death would be the probable consequence of his act. See Ogumo v The State (2011) NWLR (Pt.1246) 314; Giwa V. The State (1996) 4 NWLR (Pt.443) 375 at 337; Akpan V. The State (1994) 25A LRCN 137 at 146; Adekunle v The State (2006) 43 WRN 1 at 24; Edwin Ogba v The State (1992) 2 NWLR (Pt.222)164 at 198 paragraph G; Onah v The State (1985) 3 NWLR (Pt. 12) 236. PER PAUL ADAMU GALINJE, J.S.C.

CONDITION THAT MUST BE SATISFIED BEFORE THE SUPREME COURT WILL INTERFERE WITH A CONCURRENT FINDING OF THE HIGH COURT AND THE COURT OF APPEAL

This is a concurrent finding of the High Court and the Court of Appeal. This Court has held in a myriad of cases that where there is a concurrent finding of facts by the two Lower Courts, it will not interfere unless exceptional circumstances have been established. Such exceptional circumstance as would warrant interference with such concurrent finding of facts by the Lower Courts, is where the Appellant satisfies this Court that there has been an error in the substantive and/or procedural law, or that there has been a miscarriage of justice or that the finding is perverse. See Bakare v State (1987) 1 NWLR (Pt. 52) 579;Adio v State (1986) 2 NWLR (Pt. 24) 581;Puncent v. State (2002) 18 NWLR (Pt. 798) 49; Amusa v State (2003) 4 NWLR (pt.811) 595; Awolaja V. Seatrade (2002) 4 NWLR (pt.758) 520. PER PAUL ADAMU GALINJE, J.S.C.

DUTY OF THE COURT TO REFRAIN FROM DECIDING A CASE BASED ON MERE CONJECTURE OR SPECULATION

In Agip (Nig) Ltd V. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 413 paragraphs B – D, this Court said:- “It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation.”See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun V. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu V. Okulaja (1996) 9 NWLR (Pt.475) 668. PER PAUL ADAMU GALINJE, J.S.C.

WHETHER FOR THE DEFENCE OF ALIBI TO BE AVAILABLE IT MUST BE RAISED TIMEOUSLY

I absolutely agree with the views expressed by the Lower Court in so far as the defence of alibi is concerned. It must be timeously raised as soon as the accused who seeks to rely on the defence of alibi is arrested and the offence for which he is charged is explained to him. In the instant case the appellant only raised the defence of alibi in his third statement to the police Exhibit L. I therefore agree with the Lower Court that the defence is not available to the Appellant. I agree with the Lower Court that the act that led to the death of the deceased was carried out by the Appellant. PER PAUL ADAMU GALINJE, J.S.C.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

AYO ADEGBITE Appellant(s)

AND

THE STATE Respondent(s)

PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant in this appeal was arraigned on an information before the High Court of Ondo State, sitting in Akure, charged with the offence of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap 30, Vol. II Laws of Ondo State of Nigeria 1978. The particulars of the offence are that on or about the 7th day of November, 2009 at about 7.00 p.m along Ilu-Abo-Ajegunle Road, within the Akure Judicial Division did murder one Theophilus Afolabi by pouring acid on him. Appellant pleaded not guilty to the charge. During the trial that followed the plea of the Appellant, the prosecution called five witnesses and tendered various documents in evidence which were admitted and marked Exhibits A-O and R. The Appellant testified in person and called five other witnesses. At the end of the trial and in a considered judgment which was delivered on the 27th of February, 2013, Kolawole J found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant’s appeal against the judgment of the trial Court was dismissed by the Court of Appeal

on the 28th of January, 2015. The appeal before this Court is against the decision of the Court of Appeal, Akure Division. The Appellant’s amended notice of appeal dated 29th June, 2015 and filed on the 16th of October, 2015, but deemed filed on the 6th of April, 2017 contains six grounds of appeal.

Parties filed and exchanged briefs of argument. Appellant’s brief of argument settled by Rotimi Aladesanmi Esq of counsel is dated 6th October, 2015 and filed on the 8th October, 2015, but deemed filed on the 6th April, 2017. At page 7 of the said brief a single issue is formulated for determination of this appeal and it reads thus:-
“Whether the prosecution proved its case against the Appellant beyond reasonable doubt, to justify his conviction for the murder of the deceased.”

The Respondent’s brief of argument, settled by Aderemi Olatubora, learned Attorney-General of Ondo State is dated and filed on the 20th September, 2016, but deemed filed on the 6th April, 2017. At page 2 of the said brief a single issue is also formulated for determination of this appeal and it reads thus:-
“Having regard to the quality of evidence led at the trial Court

whether the Court of Appeal was not right to have affirmed the conviction and sentence of the Appellant for the offence of murder.”

Appellant’s reply brief of argument dated 30th September, 2016 was filed on 4th of October, 2016 and was deemed properly filed by this Court on the 6th April, 2017. The sole issue formulated by the parties are similar. I will treat them together.

The facts of this case are simple and straight forward. Theophilus Afolabi the deceased was a resident of Ajegunle. He lived on the same street with the Appellant who he had known very well.

On the 7th of November, 2009 he went to Ilu-Abo a neighbouring village to visit his bosom friend Chief Tayo Falana, alias Teacher. His friend was not at home and so he decided to return home. On his way at about 7.00pm, he was bathed with acid by someone who came out from the bush. He managed to get to the State Hospital Akure where he was admitted for treatment. The following day, being 8th of November, 2009, his wife who visited him at the hospital, said the deceased told her that it was Appellant that attacked him with acid. She reported what her husband told her to the

police who subsequently arrested the Appellant.

In arguing the sole issue for determination of this appeal, learned appellant’s counsel submitted that the prosecution’s case was totally founded on mere suspicion. In a further argument, learned counsel submitted that the failure of the prosecution to call vital witnesses, especially those who came to the scene soon after the attack, including one Ogoja man who the deceased’s wife testified that he helped convey her husband to the State hospital Akure, is fatal to the prosecution’s case. In aid, learned counsel cited Ochiba v State [2011] 48 NSCQR 1 at 32 33; Alake v State [1992] 9 NWLR [Pt. 265] 260;Edoho v State [2004] 5 NWLR [Pt. 865] 17; Igben v State (2015) 8 WRN 94 at 122; Kuda v. State (1991) 8 NWLR [Pt.208] 134 at 147;Odofin Bello v The State [1967] NMLR 1. Still in argument, learned counsel submitted that the issue as to whether it was the appellant who attacked the deceased or not would have been easily resolved if the appellant had been taken to the hospital to hear the deceased’s accusation and to make necessary input to the discussion and/or accusation. Learned counsel accused PW1 of

forging Exhibit E, which is the statement made by the deceased on his hospital bed, as he submitted that the signature the said exhibit is similar to the signature on Exhibit A, the statement made by PW1.

In his argument in reaction to the appellant’s submission that the failure of the prosecution to call vital witness is fatal to its case, learned Attorney-General of Ondo State submitted that all the vital and material witnesses required for the prosecution to establish its case were called. Learned Attorney General submitted that it is not within the purview of the prosecution to hunt for imaginary eye witnesses and it is also trite, according to the Attorney-General that the prosecution does not need to call a host of witnesses before establishing its case that will earn a conviction in a criminal trial. In aid, learned Attorney-General citedMichael Hausa v The State (1994) 6 NWLR (Pt. 350) 281. On Exhibit E, learned Attorney-General submitted that it was properly admitted in evidence, even though the Court did not rely on it as a dying declaration.

Although the burden on the prosecution is to prove its case beyond reasonable doubt, the

prosecution has a discretion to call on those witnesses it requires to establish its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence. I have also not come across any rule of law which imposes an obligation on the prosecution to call a host of witnesses in proof of its case. See Adaje v The State (1979) 6 – 9 SC 18: Okonofua v State (1981) 6 – 7 SC 1; Saidu v State(1982) 4 SC 41; Okpulor v State (1990) 7 NWLR (Pt. 164) 581; Ugwumba v State (1993) 5 NWLR (Pt. 296) 660; Udo v State (2006) 15 NWLR (Pt. 1001) 179.
However, the law is settled that for the prosecution to prove its case beyond reasonable doubt, it must call vital witnesses whose evidence may determine the case one way or the other. Failure to call such vital witnesses is fatal to the prosecution’s case. Learned counsel for the Appellant raised this issue at the trial Court in his address at page 52 paragraph 4 of the printed record of this appeal as follows:-
Similarly, PW3 and PW5, in their respective oral evidence and extra-judicial statements, the PW3 said in his extra Judicial statement dated 11th December,

2009 and marked Exhibit E that he obtained the statements from the witnesses at the scene of the crime, but none of these statements were tendered, neither the makers of the said statements at the scene of the crime were called to testify or confirm that the deceased mentioned the name of the Accused Person as the person who bathed him with acid.”

In the same address on behalf of the Appellant at pages 52 – 53 of the record, learned counsel did not believe the evidence of PW3 whom he described as most unreliable witness in the following words:-
PW3 could best be described as most unreliable witness as his evidences (sic) are self-contradictory, unreliable, doctored and fabricated to suit the purpose he wanted to achieve how can an I.P.O who was saddled to investigate a very serious matter of this nature tell lies while on oath that he went to the scene if the crime of which he recorded some statements from the witnesses and no single one was tendered or called to testify at the trial.

Clearly from these passages, learned counsel for the Appellant did not believe that there were witnesses at the scene of the crime

that were known to the prosecution, to be so vital as to be called to testify. Since the learned counsel for the appellant did not name any vital witness and did not believe that the Investigating Police Officer met some people at the scene of the crime, who were present and witnessed the commission of the crime, his argument that the prosecution did not call vital witness is baseless. The ‘Ogoja boy’, who learned counsel said, was mentioned by the deceased’s wife as someone who conveyed her husband to the hospital is not fixed to any address as will readily be invited by the prosecution. ‘Ogoja boy’, does not mean a particular person. To that extent, there is no way the prosecution could be accused of failing to call its vital witnesses. The prosecution in my view called sufficient number of witnesses as it required for proof of its case.

Now, Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.Section 135(2) of Evidence Act 2011 also provides as follows:

The burden of proving that any

person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
Section 36(5) of the Constitution and Section 135(2) of the Evidence Act 2011 referred to hereinabove have placed squarely the burden of proof in criminal cases on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v The State [1993] 7 NWLR (Pt. 307) 511 at 531 para A C; Sola V. The State(2005) 5 SC (Pt.1) 135.

The Appellant in this appeal, was charged with the murder of one Theophilus Afolabi, by bathing the deceased with acid. For the prosecution to establish its case, it must prove the following ingredients:-
1. That the death of Theophilus Afolabi has actually occurred.
2. That the death was caused by the Appellant.
3. That the act that led to the death of the deceased was done with the intention of causing death.
4. That the Appellant knew or had reason to know that death would be the probable consequence of his act.
See Ogumo v The State (2011) NWLR (Pt.1246) 314; Giwa V. The State (1996) 4 NWLR (Pt.443) 375 at 337; Akpan V. The State (1994) 25A LRCN 137 at 146; Adekunle v The State (2006) 43 WRN 1 at 24; Edwin Ogba v The State (1992) 2 NWLR (Pt.222)164 at 198 paragraph G; Onah v The State

(1985) 3 NWLR (Pt. 12) 236. On the first ingredients, both parties have agreed that Theophilus Afolabi is dead. There is therefore no dispute in this area. The question is whether the death of Theophilus Afolabi was caused by the Appellant. On the 2nd ingredient, the Lower Court in its lead judgment delivered by Owoade JCA and concurred by Danjuma and Abiriya JJCA, made reference to the testimonies of prosecution witnesses, especially the testimony of PW1 and came to the following conclusion: –
“In my opinion, the learned trial Judge was right to have found that the deceased through the evidence of PW1 to have found that the deceased made an admissible dying declaration and also to have relied on the same to link the death of the deceased with the action of the Appellant.” (See page 211 paragraph 2 of the record of appeal).

This view of the Lower Court is in accord with the trial Court’s conclusion at pages 116 – 117 of the record, where the learned trial Judge held:-
After a careful appraisal of the evidence, I have no doubt in my mind that it was the accused that attacked the deceased. Afolabi Theophilus along the

Ilu-Abo/Ajegunle Road on the 7th of November, 2009 at about 7.30pm, the attack caused the injuries which the deceased did not recover from. He succumbed to the injuries and died on 6th December, 2009.
My view would still not change even if I err in considering the statement made by the deceased to PW1 on 5th December, 2009 as dying declaration… There is no evidence that the substance was accidentally poured on the deceased. A person is criminally liable for the consequence of his action and/or his inaction. In this case the accused intentionally attacked the deceased with substance that severely burnt him. The injury the deceased suffered was very severe. The effect of this conclusion is that the prosecution has proved all the ingredients of the charge or murder….”

Courts, is where the Appellant satisfies this Court that there has been an error in the substantive and/or procedural law, or that there has been a miscarriage of justice or that the finding is perverse. See Bakare v State (1987) 1 NWLR (Pt. 52) 579;Adio v State (1986) 2 NWLR (Pt. 24) 581;Puncent v. State (2002) 18 NWLR (Pt. 798) 49; Amusa v State (2003) 4 NWLR (pt.811) 595; Awolaja V. Seatrade (2002) 4 NWLR (pt.758) 520. Has the Appellant established exceptional circumstances for such interference in the instant appeal

Learned counsel does not seem to be interested in satisfying the Court that exceptional circumstances exist. He is merely repeating the argument which the two Lower Courts had considered and made pronouncement upon.

Learned counsel for the Appellant admitted at page 8 of the Appellant’s brief of argument that the deceased and the Appellant had known themselves very well. This is what he said:-
It was not in dispute that the deceased and the Appellant were well known to each other. Consequently it accords with the normal cause of human behavior and conduct for the deceased to mention the Appellant’s name

specifically, and with certainty, as his assailant. Indeed upon being attacked by the Appellant, it was expected that the deceased would have shouted the Appellant’s name on the fateful evening. All witnesses before the trial Court referred to the Appellant as Ayo Adegbite except the PW1, who claimed the Appellant had always been known as Ayo Ngbada….. The deceased witnessed the attack on himself and there were eyewitnesses around at the time of the attack. This fact was confirmed by PW3 in his statement Exhibit 12…..”

The argument of the learned counsel is speculative in that it was not only the Appellant that was known to the deceased in the village. The assertion that it accords with normal cause of human behavior and conduct for the deceased to mention the Appellants name because they knew each other is not only speculative, but there is no authority that conclusively point to that fact that it is the normal cause of human behavior for an individual to do so. In Agip (Nig) Ltd V. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 413 paragraphs B D, this Court said:-

“It is trite principle also that a Court should not

decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation.”See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun V. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu V. Okulaja (1996) 9 NWLR (Pt.475) 668.

PW 3 never stated in his evidence that there were eye witnesses to the commission of the crime. This is what he said:-
“He told me that he went to Ilu-Abo to visit a friend popularly called Teacher (PW2) and that he did not meet PW 2 at Ilu-Abo. When he was returning to Ajegunle suddenly the accused came out from the bush and that he thought he was coming to greet him but instead he poured on his face a hot substance. He said he shouted for help and he said that he knew his attacker. He was later taken to the hospital. I reduced his statement into writing. The victim told me that the accused and his friend PW2 had problem relating to log woods. This is the statement I recorded from the victim who is now dead.”

The trial Court examined the testimonies of

PW1, PW2 and PW3 which showed that the deceased was constant in his assertion that it was the appellant that attacked him with the acid that finally led to his death. It was also well established, as found by the trial Court that the appellant and the deceased had known themselves up to the extent of knowing each other’s voice as such the deceased could not have mistaken his voice when the attacker told him that he (the deceased) was reaping the effect of their past acrimony. I am of the view that the Lower Court was right in upholding the trial Court’s findings. The Lower Court was also right when it refused to accord probative value to the newspaper report and radio interview as newspaper report is not always the truth of its contents, and the prosecution had no burden to tender the newspaper report in evidence. On the defence of alibi which was raised by the Appellant, the Lower Court said:-
In the instant case, the Appellant only raised the defence of alibi in his third statement to the Police Exhibit L, and that was after he became aware of the death of the deceased. He had ample opportunity to have raised the defence in his earlier

statements to the police Exhibits R and Y but he did not.
These facts greatly weaken the Appellant’s defence of alibi. In any event, the unequivocal declaration of the deceased that the Appellant was his assailant pinned the Appellant to the scene of crime. This is because the defence by the accused that he was elsewhere at the material time of the offence was committed is destroyed by unequivocal evidence tying him to the locus in quo as one who committed the offence.”

The last question is whether the act or omission of the Appellant which caused the death

of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence The learned trial Judge found that the Appellant acted intentionally when he poured the acid on the deceased, with knowledge that death or grievous hurt would be the probable consequence of his act. This finding was rightly, in my view, upheld by the Lower Court in the following words:-
“In the instant case, there is no controversy on (a) and (c) above. In other words there is no issue as to the fact of death of the deceased or that the assailant of the deceased intended death or grievous bodily harm to which death was a probable consequence.

For all I have said, I have no reason to overturn the decision of the Lower Court. The sole issue formulated for determination of this appeal is therefore resolved against the appellant and in favour of the respondent. I find no merit in this appeal which shall be and it is hereby dismissed The decision of the Lower Court is hereby affirmed.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother Galinje JSC. I agree that the appeal

is devoid of any merit and should be dismissed.

The facts of the case are well spelt out in the lead judgment. I will not repeat same.

It is on record and also not disputed that the appellant and the deceased were not strangers to one another but have known each other very well. The trial Court judge, who heard the witnesses in particular PW1, PW2 and PW3, was so emphatic that the deceased did not mince his words that it was the appellant who was responsible for his calamity.

Also contrary to the assertion made by the appellant, the PW3 in his evidence never said there were eye witnesses at the time the deceased was attacked.

The two Lower Courts were concurrent in their decisions. The onus falls on the appellant to give good and convincing reasons why this Court should disturb the decisions of the Lower Courts.
Judicial authorities are always wary (loath) to interfere with findings of fact made by a trial Court unless it is shown to be unreasonable, perverse and where such is not the result of genuine exercise of judicial discretion and has resulted in a miscarriage of justice. See Kodilinye v. Odu (1935) 2 WACA 336,

Yesufu v. Adama (2010) 5 NWLR (Pt.1188) 522: See also Military Governor of Lagos State v. Adeyiga (2012) 5 NWLR (Pt.1293) 291 at 334, 336 and 338.
Further authority is the case of Adenike v. State (2015) 7 NWLR (Pt.1458) 237 at 286 where this Court said:-
“The Supreme Court will rarely upset the findings made by the trial Court and affirmed by the Court of Appeal. This is so because such findings were arrived at after cross examination and observation of the witnesses by the trial judge. Such concurrent findings of the two Courts below ought to carry much weight in an Appeal Court which did not have the opportunity or advantage of the trial Court”.
See also Shurumo v. State (2010) 19 NWLR (Pt.1226) 56 at 100 101; Sobakin v. State (1981) 5 SC 75 and Igwe v. State (1982) 9 SC 174.

My learned brother Galinje JSC has done justice to this appeal. I hereby adopt his judgment as mine and also dismiss this appeal in terms of his lead judgment. The concurrent judgments of the two Lower Courts are endorsed also by me in terms of the lead judgment.

Appeal is hereby dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the lead judgment of my learned brother, PAUL ADAMU GALINGE, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.

This appeal is from concurring findings of fact of the two Courts below, with the Lower Court affirming the conviction and sentence of the appellant by the trial Court for the offence of murder. The attitude of the Supreme Court to concurrent findings of fact is that it would not usually interfere with such findings unless they are shown to be perverse, not based on the evidence before the Court or where there has been an error of law or error in procedure which has occasioned a miscarriage of justice. See: Ebba Vs Ogodo (1984) 4 SC (Reprint) 71; Oke Vs Mimiko (2013) 8 SC 1; Woluchem Vs Gudi (1981) 5 SC 291. The rationale for this position was eloquently stated by His Lordship, Belgore, JSC (as he then was) in Bamgboye Vs Olarewaju (1991) 5 SC 104 @ 111 Lines 8-18 as follows:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in

certain circumstances. The real reason behind this attitude of appellate Courts is that the Court hearing the appeal is at a disadvantage as to the demeanour of witnesses in the Lower Court as they were not seen and heard by the appellate Court. It is not right for the appellate Court to substitute its own eyes and ears for those of the trial Court which physically saw the witnesses and heard them and thus able to form an opinion as to what weight he place on their evidence.
See also: Ndulue Vs Obiakor & Ors. (2013) 1-2 SC (Pt.II) 91 @ 127.

In a charge of murder, the onus is on the prosecution to prove the following beyond reasonable doubt:
a. That the deceased died;
b. That the death of the deceased resulted from the act of the accused; and
c. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its possible consequence.
See: Akpan Vs The State (1994) 9 NWLR (Pt.368) 347; Jimoh Vs The State (2014) 3 SC 1; (2014) LPELR – 22464(SC); Sunday Udor Vs The State (2014) 5-6 SC (Pt.II) 177; (2014) LPELR-23064 (SC).

It is not in dispute that the deceased died. It is

also not in dispute that whoever poured acid on the deceased did so with the knowledge that death or grievous bodily harm was its probably consequence. The issue in contention is whether it was the appellant who inflicted the injury on the deceased.

Learned counsel for the appellant has challenged in particular the evidence of PW1, the wife of the deceased, who stated in her testimony that the deceased told her consistently from the time he was attacked and more significantly, just before he died that it was the appellant who attacked him. It is contended that the trial Court wrongly relied on Exhibit E as a dying declaration. It is also argued that the prosecution failed to call as witnesses those described by PW3 as eye witnesses to the crime and that the appellant’s defence of alibi was not properly investigated by the police.

In opposition learned counsel for the respondent has argued that the evidence of PW1, PW2 and PW3 was compelling as to the identification of the appellant as the person who poured acid on the deceased and also as to the fact that the appellant and the deceased were not strangers, as the testimony of PW1 and PW2

revealed that the deceased had intervened in a dispute between the appellant and PW2 and that the appellant had threatened to deal with him (the deceased) by roping him into a crime if he did not desist in his interference.

Learned counsel argued that the prosecution called all material witnesses, as it is not obliged to call every available witness to prove its case. It is also contended that the quality of evidence led by the prosecution particularly as regards the identification of the appellant as the perpetrator of the crime rendered his defence of alibi incredible.

As observed earlier, in order to dislodge the concurrent findings of fact by the two Lower Courts, the appellant must satisfy this Court that those findings are perverse.

It must also be borne in mind that where the evidence before the Court depends mainly on the credibility of the witnesses, no Court is in as good a position as the trial Court, which had the opportunity of seeing and hearing the witnesses testify and of observing their demeanour in the witness box, to determine the credibility of those witnesses. See: EKPA VS. UFONG(1991) NWLR (PT.197) 258; ONUOHA V. THE

STATE (1989) NWLR (PT.101) 23; BUSARI VS. THE STATE (2015) LPELR 24279 (SC). It is trite that where a trial Court evaluates the evidence and makes a proper appraisal thereof, it is not the business of an appellate Court to substitute its views for the views of the trial Court. A trial Court, which had the opportunity of watching the demeanour of the witnesses who testified before it is entitled to believe or disbelieve such witness. See Onwugbufor Vs Okoye (1996) 1 NWLR (Pt.424) 252; Busari Vs The State (Supra).

The trial Court had the opportunity of seeing and hearing the witnesses for both sides testify and to determine their credibility.

PW1, PW2 and PW3 were consistent in their testimonies that the deceased told them on several occasions that it was the appellant who poured acid on him. In particular PW1 testified thus:
“Each day, my husband would hold my hand and tell me it was Ayo Ngbada, the accused who attacked him with acid. I did not know the accused as Ayo Adegbite. We all know him in our village, Ajegunle as Ayo Ngbada.
On 5/12/2009 the injury had weakened my husband and he was on the point of death but he still

insisted that it was the accused that attacked him with acid. My husband subsequently, died on 6/12/2009.”

PW3, the I.P.O. testified that the deceased told him it was the appellant who attacked him. It was this statement of the deceased that was reduced into writing and tendered as Exhibit E. After a careful and comprehensive evaluation of the evidence led on both sides, the trial Court found the evidence of PW1, PW2 and PW3 to be credible and found the evidence of the defence witnesses unreliable. The Court below affirmed the following finding of the trial Court at page 212 of the record:
After a careful appraisal of the evidence, I have no doubt in my mind that it was the accused that attacked the deceased, Afolabi Theophilus along the Ilu-Abo/Ajegunle Road on the 7th November 2009 at about 7.30p.m, the attack caused the injuries which the deceased did not recover from. He succumbed to the injuries and died on 6th December, 2009. My view would still not change even if I err in considering the statement made by the deceased to PW1 on 5th December, 2009 as dying declaration… There is no evidence that the

substance was accidentally poured on the deceased. A person is criminally liable for the consequence of his action and/or his inaction. In this case the accused intentionally attacked the deceased with substance that severely burnt him. The injury the deceased suffered was very severe. The effect of this conclusion is that the prosecution has proved all the ingredients of the charge of murder

The trial Court also found that the defence of alibi could not be sustained, firstly because the appellant was fixed at the scene of crime and secondly because the evidence of the defence witnesses as to his whereabouts at the time of the commission of the crime was inconsistent. The identification by the deceased of the appellant as his attacker was found by the trial Court to be credible since there was evidence before it that they knew each other well before the incident.

On the defence of alibi the Lower Court held:
“In the instant case the appellant only raised the defence of alibi in his third statement to the police, Exhibit L, and that was after he became aware of the death of the deceased. He had ample opportunity to have

raised the defence in his earlier statement to the police, Exhibit R and Y but he did not.
These facts greatly weaken the appellant’s defence of alibi. In any event the unequivocal declaration of the deceased that the Appellant was his assailant pinned the appellant to the scene of the crime. This is because the defence by the accused that he was elsewhere at the material time the offence was committed is destroyed by unequivocal evidence tying him to the locus in quo as one who committed the offence. Aiguoreghian Vs State (2004) 3 NWLR (Pt.860) 367; Nwosisi vs State (1976) 6 SC 109;Sowemimo vs State (supra) (2004) 11 NWLR (Pt.885) 515].

The findings of the Court below, in my considered view, are in full accord with the evidence before the trial Court. The appellant has failed to convince me of any special circumstance to warrant the interference of this Court with the concurrent findings of the two Courts below.

For these and the more exhaustive reasons advanced in the lead judgment, I find no merit in this appeal. It is hereby dismissed. The judgment of the Lower Court is affirmed.

Appeal dismissed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Paul Adamu Galinge, JSC, just delivered. I agree with his reason and conclusion that the appeal is devoid of merit and should be dismissed. I will add a few words of my own.

The law is that it is not enough for an accused to raise the defence of Alibi at the stage of trial. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. If the Appellant said he was in a particular place, he must give a lead as to the specific place, names and/or addresses of who to contact and the relevant period he was away from the scene of crime.
Therefore, where an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during the hearing of the defence. The mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was, and who could know of his presence at that other place at the material time of the commission of the offence in

question. See:- YANOR VS THE STATE (1965) 1 All NLR 193, and OBIODE VS THE STATE (1970) 1 All NLR 35.

It is for the above reasons that I adopt all the reasoning by my learned brother in the lead judgment as mine and consequently dismiss the appeal for lack of merit.
Appeal dismissed.

EJEMBI EKO, J.S.C. (Dissenting): The appellant was convicted for the offence of murder contrary to Section 316 of the Criminal Code Law of Ondo State. The offence is punishable with death under Section 319 of the same Criminal Code.

It is alleged in the information that on 7th November, 2009 at about 7.00p.m., along Ilu-Abo-Ajegunle Road within Akure Judicial Division that the appellant waylaid the deceased, one Theophilus Afolabi, and bathed his face with acid, a very corrosive substance. The said Theophilus Afolabi died subsequently. The appellant, charged for the murder, pleaded not guilty to the charge.

The prosecution called five witnesses and tendered several documents, which were marked as Exhibits A O and R. The appellant denied knowledge of the allegation. His defence was one of alibi.

At the end of

the trial, the learned trial Judge, Kolawole, J. of Ondo State High Court found the appellant guilty as charged and sentenced him to death. The appellant appealed the conviction and sentence to the Court of Appeal, sitting at Akure. The appeal was dismissed on 28th January, 2015. He has brought this further appeal on six (6) grounds of appeal.

Before this Court, the appellant and the respondent formulated one issue each for the determination of the appeal. The appellant’s lone issue is –
“Whether the prosecution proved its case against the Appellant beyond reasonable doubt to justify his conviction for the murder of the deceased”
For the respondent the issue formulated is
“Having regard to the quality of evidence led at the trial Court whether the Court of Appeal was not right to have affirmed the conviction and sentence of the Appellant for the offence of murder”

If the commission of a crime by a party to any proceeding is directly in issue in any proceeding it must be proved beyond reasonable doubt. In determining whether there has been a proof beyond reasonable doubt the Court evaluates the totality of the evidence

called by the prosecution. See BOY MUKA v. THE STATE (1976) 9 – 10 Sc 193. Where from the evidence furnished a witness has been inconsistent, without explanation, or when one witness discredits another, it is not for the Court to pick and choose which witness to believe and which not to believe among such witnesses. It cannot accredit one witness and discredit the other in such circumstance. See ONUBOGU v. THE STATE (1974) 9 SC 1 at 20; ATEJI v. THE STATE (1976) 2 SC 79 at 83 – 84.
This Court has also stated in PAUL AMEH v. THE STATE (1978) NSCC 308 that the prosecution cannot be said to have proved an allegation of criminal offence beyond reasonable doubt if they put before the Court two versions of the same incident. This happens when the prosecution put before the Court evidence pointing at his guilt and another set of evidence establishing his defence or innocence. In PAUL AMEH v. THE STATE (supra), the prosecution had put evidence before the trial Court two written statements of the accused person, one indicating justifiable homicide and the other pointing at culpable homicide punishable with death. It was held that the prosecution having put

forward two versions of the same incident had failed to prove the guilt of the accused person for the alleged offence beyond reasonable doubt. The two inconsistent statements of the accused person put in evidence through the prosecution’s witness(es) form part of the prosecution’s case.

In the instant case the extra judicial statement of the appellant dated 11th December, 2009 wherein he not only denied the allegation but set up a defence of alibi was put in evidence through the PW.4, a police investigator. By this piece of evidence the prosecution had put before the Court another version of the incident he was accused of. That is his alibi and total denial of the allegation.

Exhibit R, is an extra-judicial statement of the appellant made on 8th December, 2009 stating that the police told him that they were investigating the allegation that the deceased “was attacked by unknown person”. Exhibit R seems to contradict PW.1’s evidence that before 6.30 a.m. of 8th November, 2009, the deceased had named the appellant to the police as the person who attacked him with acid. It was on PW.1.s report to the police in the morning of 8th November,

2009 that prompted the police inviting the appellant for questioning in view of some previous misunderstanding between the appellant and the deceased which the PW.2 intervened to resolve.

The identity of the attacker had become a crucial or material issue in this case. Exhibit J.1., an extra-judicial statement of Akinbuli Afolabi, the daughter of the deceased and PW.1 is dated 9th November, 2009. The statement seems to confirm that by 9th November, 2009, two days after the attack the attacker had not been positively identified or revealed by the deceased. This document proves the fact that P.W.1 may have become overzealous in her determination to incriminate the appellant. In Exhibit J.1 it is clear that the maker had since the morning of 8th November, 2009 made contact with the deceased at the Hospital. PW.1 was categorical in her testimony that at 6.30a.m. on 8th November, 2009, Akinbuli Afolabi, the maker of Exhibit J.1, had told her that it was the appellant who “poured acid on my husband and her father. The PW.1 did not explain the inconsistency. The said Akinbuli Afolabi was not called as a witness. Exhibit J.1 clearly contradicts the

P.W1.

Exhibit K, The Sunshine Daily Watch, a local newspaper of 10th November, 2009 had carried the picture of the acid bathed deceased at the front page. It is reported at page 3 of the said newspaper that the deceased granted interview to the correspondent, one Seun Adebowale. It was recorded in paragraph 3 of the report that the deceased had said
“unknown to him, somebody whom he could not identify had laid ambush for him along the road. Some metres to him, the person had appeared to him from the distance but Afolabi (deceased) said he never suspended his insidious approach until he walk to him and poured acid on him”.

This account is inconsistent with the version the PW.3 narrated to the trial Court as the Investigating Police Officer. At page 18 of the Record the PW.3 testifies
“I went to see the victim at the Akure Specialist Hospital. I met with the victim and he narrated to me how he came by the injuries. — He told me that— when he was returning to Ajegunle suddenly the accused came out from the bush and that he thought he was coming to greet him but instead he poured on his face a hot substance”.

The

PW.3 got the deceased to sign the statement Exhibit E wherein he narrated Ipssima verba the version the PW.3 testified to. The statement was recorded on 9th November, 2009. In Exhibit K the attacker unknown. In Exhibit E the deceased named the appellant as the attacker. Exhibits E and K are clearly inconsistent. Both form part of the prosecutions case.

The undiscredited evidence of DW.2 suggests that the deceased, days after the attack, at U.C.H. Ibadan had told the DW.2 that –
“he did not know the person (who attacked him). The deceased told me that the accused was not the person who attacked him”.

Not a single question was put to the DW.2 on this very crucial piece of evidence. The evidence was not challenged nor discredited. It is corroborated by Exhibits R, J.1 and K, which are part of the prosecution’s evidence.

The prosecution offered no explanation for the inconsistencies between Exhibits R, J.1 and K, on the one hand, and the evidence of PW.1, PW.2 and PW.3, on the other hand as to who actually was the attacker identified to them by the deceased. These are all forming part of the case built up by the prosecution in their

bid to discharge the onus of proving the guilt of the appellant for the alleged murder of Theophilus Afolabi. The intriguing aspect of this case is that the deceased was the source of these pieces of divergent evidence purportedly identifying his attacker as the appellant. The Court must consider the totality of the evidence furnished by the prosecution. See BOY MUKA v. STATE {supra). When there are inconsistencies in the body of evidence furnished by the prosecution, without explanation, the Court cannot pick and choose which evidence to believe and which not to believe. In such situation, there would not have been a proof beyond reasonable doubt of the guilt of the accused for the alleged murder.

The prosecution in this case had the duty to prove beyond reasonable doubt that it was the appellant, and no other, who poured the acid on the deceased. Their job is to prove his guilt beyond reasonable doubt That burden of proof, as this Court stated in PAUL AMEH v. THE STATE (supra) does not include, nor extend to, proving the defence or innocence of the accused appellant. In this case, Exhibits L, Y and R, all statements of the appellant put in to

establish the defence and innocence of the appellant in relation to the offence charged. They are also a rebuttal of the insistence of the prosecution witnesses that it was the appellant who poured the fatal acid on the deceased. In the circumstance the prosecution have successfully produced two versions of the same offence or incident. I repeat, when the prosecution successfully furnish the Court two versions of the same incident, the guilt of the accused person for the alleged offence cannot be said to have been established beyond reasonable doubt. In the circumstance, I hold that the trial High Court erred in the conviction and sentence of the appellant for the murder of Theophilus Afolabi; and the Court of Appeal was also in error in affirming the said conviction and sentence of the appellant for the said murder of Theophilus Afolabi.

The disputed identity of the appellant as the person who attacked the deceased with acid has one source, and that is the deceased himself. As the evidence earlier pointed out show, the deceased was or must have been an ambivalent character full of prevarications. The totality of the evidence of the PW1, PW2 and PW3,

on one hand, and the DW2 together with Exhibits K, Y and R portrays the deceased as inconsistent and ambivalent.

I think it is dangerous to predicate the conviction and sentence of the appellant for the murder of the same Theophilus Afolabi on his materially inconsistent tales that it was, and it was not, the appellant who attached him with acid.

It is apparent from the available evidence that there existed some hostility between the appellant on one hand and the deceased and the PW.2 on the other hand. Exhibit D attests to this latent hostility, like the evidence of PW.1 at page 14 of the Record. Both the PW.1 and PW.2, having issues with the appellant before 7th November, 2009, makes it dangerous to rely, without more, on their evidence for the purpose of establishing the guilt of the appellant. Exhibit C, dated 18th August, 2009, is a petition written against the appellant by the PW.2. It reveals the malice or animosity the witness had towards the appellant. The two Courts did not consider the impact of Exhibits C and D on the credibility of PW.1 and PW.2.

Exhibit P was part of the prosecutions case. It was recorded by the

PW.5, a police investigation officer, from one Zainab Ismaila. Exhibit P corroborates the alibi of the appellant that he brought Zainab Ismaila and others to Idanre some minutes before 8.00p.m. They left the venue of the wedding after 6.00p.m. The question: was the alibi investigated and/or rebutted The learned trial Judge at page 114 of Record in dismissing Exhibits P, & D, and the evidence of DW.3 stated that Zainab Ismaila who made Exhibit P, like the maker of Exhibit O, did not testify and were not cross examined. His Lordship missed the point. The issue is whether the alibi in Exhibits P and O were investigated, confirmed or rebutted. They were not. The benefit of doubt should have been resolved in favour of the appellant.

The only contentious issue, as the Court of Appeal rightly found, was whether the death of the deceased Theophilus Afolabi, could be attributed to the appellant Apart from the Court of Appeal stating that the learned trial Judge was right to have found the deceased, through the PW.1, made a dying declaration, it did not go further to analyse the other pieces of evidence, earlier pointed out in this Judgment, that made the

ambivalence or prevarication of the deceased as to who attacked him very unreliable. If the learned Justices of the Court of Appeal had considered the ambivalence of the deceased they would come to the right conclusion that it was dangerous to rely on the inconsistent stance of the deceased for holding that it was the appellant who attacked the deceased with the acid bath.

In my firm view, I do not think the prosecution had proved beyond reasonable doubt that it was the appellant, and no other, who poured acid on the deceased. Accordingly, I hereby resolve the lone issue in this appeal in favour of the appellant notwithstanding the concurrent findings of fact by the trial High Court and the Court of Appeal. I allow the appeal. The concurrent findings of fact that it was the appellant who poured acid on the deceased on 7th November, 2009, were perverse. They were rendered without taking into consideration the inconsistencies in the prosecution’s case are hereby set aside. The conviction and sentence of the appellant for murder are hereby set aside, and in their stead I enter a verdict of not guilty and order that the appellant be and is hereby

discharged and acquitted.

Appearances