CHIEF DAYO OKONDO V. THE STATE
(2010)LCN/4108(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/IL/C.9/2010
RATIO
DEFENCE OF ALIBI: WHAT THE DEFENCE OF ALIBI ENTAILS
Alibi is a radical defence and simply means “elsewhere”. It means that an accused was somewhere else at the material time of the commission of an offence and he cannot possibly be at the scene to partake in it. If it succeeds, it would mean that the accused was in no way involved in the crime unlike other defences which may still have implicated or connected him with a particular offence. It is no longer in doubt that if an alibi is properly raised, it is the duty of the prosecution to investigate it. It is however the duty of the accused person relying on an alibi to give details of the alibi he has set up to enable the prosecution or the police to investigate it’ His duty involves letting the police know at the earliest opportunity where and with whom he was at the material time. That is, he has to furnish the prosecution with the full particulars of his alibi. He must furnish his whereabouts and those present with him at the material time of the incident. It is the duty of the prosecution to investigate same carefully. The prosecution has a duty to dispute same. See Shehu vs. State (2010) 8 NWLR (Pt. 1195) 112; Olaiya vs. State (2010) ALL FWLR (pt. 574) 1; Akpan vs. State (1991) 3 NWLR (Pt. 182) 646; Ogoala vs. State (1991) 2 NWLR (pt. 175) 509; Ozaki vs. state (1990) 1 NWLR (pt.124) 92. If he does not disclose this, the police cannot be expected to go on a wild goose chase. See Nwabueze vs. State (1988) 4 NWLR (pt.86) 16; Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92; Esan Gbedo vs. State (1989) 4 NWLR (pt.113) 57; Eyisi Vs. State (2000) 15 NWLR (pt. 691) 555; and Ani Vs. State (2009) 10 NWLR (pt.1168) 443. PER UWANI MUSA ABBA AJI, J.C.A.
BURDEN PLACED ON A PERSON WHO PROFFERS A DEFENCE OF ALIBI
…It is trite that whoever proffers defence of alibi must give detailed particulars of the other places where he was at the time when the crime was committed. I therefore agree with the submission of learned counsel for the Respondent that the non particularization as to the timing and movement of the Appellant make his plea of alibi a worthless venture. The importance of time element in defence to the commission of crime has long been over emphasized. See Dagayya vs. State (2006) 7 NWLR (pt.980) 637 @ 663, per Niki Tobi, J.S.C., when he stated thus; “In view of the importance of time element in the defence, months, days, hours, minutes and even in some cases seconds count in the determination of the criminality of the accused person. After all, in the determination of criminal responsibility, minutes count if it not seconds. It is a fact that an offence could be committed within a second of the clock. And so the court has to take into consideration the time element to the minutest detail in its search for criminal responsibility on the Part of the accused Person. The defence of alibi crumbles the moments the prosecution gives superior evidence that is more believable evidence than that of the accused person not only at the scene of crime but also in the commission of the crime,” PER UWANI MUSA ABBA AJI, J.C.A.
ON WHAT IS THE FINDING OF FACT IN A CRIMINAL COURT BASED ON
It is trite that a criminal court’s finding of fact must be based on credible evidence or reasonable inference drawn from facts presented by the prosecution in a case. See Amadi vs. State (1993) 8 NWLR (pt. 314) 644; Onyegbu vs. State (1995) 4 SCNJ 275. PER UWANI MUSA ABBA AJI, J.C.A.
STANDARD OF PROOF: ON WHAT BASIS IS THE COMMISSION OF A CRIME BY A PERSON PROVED
It is trite that the commission of a crime by a person must be proved beyond reasonable doubt. PER UWANI MUSA ABBA AJI, J.C.A.
HOW THE GUILT OF AN ACCUSED CAN BE PROVED
The guilt of an accused can be proved by the confessional statement of the accused person or by the evidence of an eye witness, that is the person who was present at the scene of crime and saw it committed or by circumstantial evidence, that is evidence of surrounding circumstances, showing that the only reasonable conclusion is that it was the accused person that committed the offence. PER UWANI MUSA ABBA AJI, J.C.A.
PROOF BEYOND REASONABLE DOUBT : MEANING OF PROOF BEYOND REASONABLE DOUBT; AT WHAT POINT CAN THE PROSECUTION BE SAID TO HAVE DISCHARGED THE BURDEN PLACED ON HIM BY LAW
It is a cardinal principle of our criminal justice system that it is duty of the prosecution to prove its case beyond reasonable doubt; however, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner’ of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on him by law. Doubt in the mind of the court pre-supposes that the case against the accused person has not been proved beyond reasonable doubt and reasonable doubts which justify acquittal is doubt based on reason and arising from evidence or lack of evidence. It is a doubt which a reasonable man might entertain. It is not a fanciful doubt and it is not an imagined doubt as would cause prudent men to hesitate before acting in matters of importance. See Dibie vs. State (2007) 9 NWLR (pt. 1038) 30; Udosen Vs. State (2007) 4 NWLR Pt. 1023) 125; Onyia Vs. State (2006) 11 NWLR (Pt. 991) 265- Proof beyond reasonable doubt in essence does not admit of plausible and fanciful possibilities but it admit of high degree of cogency consistent with an equally high degree of probability. Therefore, when a convicted person asserts that the prosecution has failed to prove his guilt beyond reasonable doubt before his conviction, it is for him to establish that it is so and it is the duty of an appellate court to examine the assertion against the whole background of the case and in particular against the evidence leading to the guilt of the Appellant.In the instant case, the Appellant contended that the failure of the prosecution to call DW2, Daramola Olaseinde Olawole, who said he witnessed the incident of 1sth October, 2004 and was also a victim of gun shot ought to have constitute a doubt in the mind of the trial judge. It is trite that the law imposes no obligation on the prosecution, to call a host of witnesses to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has discretion in the matter.In other words, the prosecution is not bound to call every witness to testify. All that it requires are the testimonies of witnesses who are necessary to prove its case beyond reasonable doubt. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
CHIEF DAYO OKONDO Appellant(s)
AND
THE STATE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon Justice I. O Akeju of the High Court of Ekiti State delivered on the 4th day of May, 2009 convicting the Appellant of attempted murder punishable under section 320(1) of the criminal code Cap 30 vol. II Laws of Ondo State of Nigeria 1978 as applicable in Ekiti State of Nigeria and sentencing him to a term of imprisonment for three years with an option of fine of N20, 000
For a proper perception, it is instructive to state the facts of the case leading to this appeal. Between 13th and 15th of March 2004, the students of College of Education, Ikere-Ekiti went on rampage over the Ekiti State Government’s proposal to appoint an unpopular candidate as Provost of the College as against the popular Acting Provost.
The Appellant at the material point in time was a Member of Board of Trustees, People’s Democratic Party, a Politician and Chairman of Ekiti State Local Government Service Commission. He is also from Ikere-Ekiti and resident there.
On the 15th March, 2004 the student representatives of the aforesaid college decided and did visit the residence of the Appellant perhaps with a view to pleading with the Appellant over the matter. On their way to the Appellant’s house, Gbenga Jaiyeola, PW1 the victim of the violent demonstration joined the student’s representatives and accompanied them to the Appellant’s house. It is worthy of note that the said Gbenga Jaiyeola was not a student of the college.
On reaching the house of the Appellant the students’ representatives met the absence of the Appellant but met armed Mobile Policemen and the relations of the Appellant at home. According to PW.1, the victim of the offence, stated that he was shot by the Police Orderly to the Appellant, 2nd Accused in the Criminal charge at the trial court on the instruction of the Appellant and the Appellant himself.
The Appellant denied shooting the PW1 and raised the defence of alibi in his extra judicial statement. The appellant did not testify in his own defence but called three witnesses who testify for him as DW1, DW2 and DW3 while DW4 testified for the 2nd accused person, and the 2nd accused testified for himself as DW5.
The learned trial judge found that the Appellant raised the defence of alibi, but that he failed to state the exact time he was with DW1. In a considered judgment delivered on the 4th day of May, 2009, the learned trial judge discharge the Appellant’s Police orderly, the 2nd Accused person of the offence of attempted murder by shooting and acquitted him accordingly, but convicted the Appellant of the said offence and sentenced him to a term of imprisonment of three (3) years or a fine of N20, 000.
In all the prosecution called five (5) witnesses. The defence also called five (5) witnesses including the 2nd accused that was discharged and acquitted.
The Appellant is aggrieved with the aforesaid judgment of the Lower Court, and has appealed to this Hon. Court; vide a Notice of Appeal filed on the 20th May, 2009, upon the following three grounds of appeal. The three (3) grounds of appeal shorn of their particulars are hereby reproduced.
1. Ground One
The learned trial Judge erred in law by convicting the Appellant of the offence of attempted murder by shoot (sic) a gun at one Olugbenga Jaiyeola when it was obvious from a record that the Appellant timeously raised the defence of alibi, and same was properly investigated by the investigating Police Officer and found to be true.
2. Ground Two
The Learned trial Judge erred in law by failing to resolve the reasonable doubts emanated from the evidence in favour of the Appellant.
3, Ground Three:
The judgment of the trial court is unreasonable and unwarranted having regard to the evidence adduced.
In compliance with the practice and procedure of this court, parties filed and exchanged briefs of arguments. In the Appellant’s Brief of Argument settled by Emmanuel Bamidele Omotoso, Esq., two issues were distilled for determination, to wit:-
1. Whether the trial Court considered and rightly rejected the defence of alibi put up by the Appellant.
2. Whether from the nature and circumstances of this case. The prosecution proved his case beyond reasonable doubt.
In the Respondent’s brief of argument settled by Gboyega Oyewole Esq., for the Hon. Attorney General, Ekiti State, Ekiti State Ministry of Justice, Ado-Ekiti, the learned counsel adopted the two issues for determination formulated by the Appellant for the determination of the appeal.
At the hearing of the appeal on the 5th October, 2010, learned counsel for the Appellant adopted and relied on the Appellant’s brief of argument dated 25rh of February 2010 and filed of the 9th March, 2010, and urged the court to set aside the judgment of the trial court and to discharge and acquit the Appellant on the count of attempted murder.
Learned counsel for the Respondent adopted and relied on the Respondent’s brief of argument dated the 25th day of March, 2010 and filed on the 26rn March, 2010 and urge the court to uphold the decision of the trial court and to dismiss the appeal.
The Respondent, having adopted the two issues for determination as formulated of by the Appellant, the said issues will now be considered in the determination of this appeal.
ISSUE ONE
Whether the trial court considered and rightly rejected the defence of alibi put by the Appellant.
E. B. Omotoso Esq., for the Appellant arguing this issue submitted that, alibi as a defence simply seeks to establish that at all times material to the commission of the offence, the accused person was nowhere near the locus in quo and ordinarily, he could not be expected to be involved in the physical execution of the criminal offence alleged. Learned counsel referred to the extra judicial statement of the Appellant to the police on 10th October 2006 upon his arrest i.e. Exhibit 3, that he was at Unity Restaurant at Ikere Ekiti with a senior brother to Daramola Asoju by name Tunde Asoju when call came from his wife that there was firing going on around his house.
It is submitted by the learned counsel that Exhibit 3 demonstrated that the Appellant sought to and did rely on alibi, that on the 15th March, 2006 he was at Unity Restaurant Ikere Ekiti when the students revisited his house and during the period of gun shooting. Omotoso Esq., for the Appellant also referred to the evidence of the police investigating officer, PW 3 John Emeje that the Appellant raised the defence of alibi in his statement and that because of the alibi raised, he proceeded to record a statement from one Ayodele Samuel Ologun who stated that the Appellant was in the restaurant of Samuel Ayodele Ologun when the shooting took place Learned counsel submitted that, Samuel Ologun gave evidence as DW1 and corroborated the evidence of alibi raised by the Appellant to the effect that the Appellant was in his shop at the material time to this case. He referred to the judgment of the learned trial judge at pages (121 – 122) of the record of appeal and submitted that, the learned trial judge misplaced the duty of establishing alibi, that it is not the duty of the Appellant to establish alibi, once raised. He cited in support the cases of Oshodin vs. State (2001) 12 NWLR (pt. 726) 217 @ 321; Alabi Vs. The State (1993) 7 NWLR (Pt.307)) 511 @ 531 .
It is the view of learned counsel, that the learned trial judge was very much particular about the time the offence was allegedly committed and submitted that the time the alleged offence was committed was not stated in the charge. It is also his view that the learned trial judge who found at difficult to believe the evidence of PW1, the victim, to the effect that he was shot by the Appellant’s police orderly did not find it difficult to believe this evidence of PW1 that the incident happened at about 2.30 pm. Learned counsel referred to the evidence of PW1 at page 36 of the record of appeal and submitted that the offence was allegedly committed on 15th October, 2004 whilst PW1, the victim of the offence made his statement on the 27th October, 2006 yet the learned judge relied heavily on the evidence given by PW1 to reject the defence of alibi raised by the Appellant and that this has occasioned a miscarriage of justice.
It is also the view of learned counsel for the Appellant, that the Appellant gave a detailed particularization of his whereabouts on the day of the offence including the specific place where he was, the people in whose company he was and what transpired at the said time and place and that the court would have no option than to exercise its discretion of doubt in favour of the Appellant and that the learned trial judge wrongly rejected the defence of alibi put up by the Appellant and convicted him accordingly, thereby occasioning a miscarriage of justice. It is his view that this is enough to vitiate the trial and set aside the conviction of the Appellant citing in support the case of Ebere vs. State (2001) 12 NWLR (pt. 728) 617 @ 636. The court was urged to resolve this issue in favour of the Appellant
In this response on this issue, the learned counsel for the Respondent, Gboyega Oyewole, Esq., submitted that this issue under consideration questions the propriety of the decision of the trial court which rejected the defence of alibi put up by the Appellant. He submitted that the thrust of the argument of the Appellant’s counsel was that the learned trial judge misplaced the duty of establishing a plea of alibi. That all the evidential burden to successfully make a defence of alibi were discharged.
Learned counsel submitted that the entire assemblage of the Appellant’s counsel argument on this issue go to no issue, as the mere submission of any counsel no matter how alluring can never serve as substitute for the evidence, oral or documentary necessary to construe the law relying on the authority of Igwe vs. A.I.E.E. (1994) I NWLR (pt. 368) 459 @ 481. He also submitted that where facts of a case reject a principle, as in this instant case i.e., the allegation of rejection of the plea of alibi, the court will have no competence to adopt or apply the principre of raw in that case, citing also the case of Orugbo vs. Una (2002 46 WRN 1 @ 4.
Learned counsel further submitted that, when an accused person proffers a defence of alibi, some evidential burdens are placed on him to discharge, viz –
i. To give particulars of the other place where he was at the time when the crime was committed.
ii. To name persons who can confirm his being there at the time of the crime, and
iii. To give the exact time they were together as against the time of the commission of the alleged offence; etc.
Learned counsel submitted that Exhibit 3 was the only extra judicial statement made by the Appellant to the Police Investigating Officer and that this is the only explanation in answer to the charges against the Appellant who chose or elected not to be paraded or tendered as a witness from the witness box.
It is submitted that the issue of alibi is never made part of our law of Evidence but it is a rule of practice with its own peculiarities which must be fulfilled, citing the case of Okosi Vs. State (1998) 1 NWLR (pt.100) 642 @ 651 . He therefore submitted that the plea of alibi is bound to fail when the accused person fails to discharge the entire evidential burden placed upon him by the rules of practice. It is also submitted that there is nothing esoteric in the defence of alibi if the prosecutor adduces sufficient and accepted evidence to fix the accused person at the scene of crime at the material time. It is also his view that the Appellant’s counsel made a mountain out of a mole’s hill on the issue of alibi as x-rayed in Exhibit 3. It is his view that Exhibit 3 failed to discharge the required evidential burden placed on the Appellant for his plea to avail him. The case of Chia vs. State (1999) 6 NWLR (Pt. 465) @ 470 was relied upon. Learned counsel also submitted that from the records in the instant appeal, the Appellant never mentioned when he left where he was at the Unity Restaurant nor did he ever mentioned when he got to his house which was the scene of crime on the date of the commission of the alleged crime. Learned counsel therefore submitted that the non particularization as to the timing and movement of the Appellant make his plea of alibi a worthless venture and this court was urged to so hold. Reference was also made to the judgment of the trial court at page 122 of the record and submitted that the argument of the Appellant’s counsel that the learned judge misplaced the duty of establishing alibi would be most uncharitable and clearly unfounded.
He submitted that a criminal courts finding of fact must be based on credible evidence or reasonable inference drawn from facts presented by the prosecution in the case and cited the case of Amadi vs. State (1993) 8 NWLR (pt.314) 644. It is also submitted that there is no evidence on record that the trial court made it a duty for the Appellant to establish his alibi. That the Appellant has a duty to put forward evidence in support of his plea of alibi. He referred to the case of Udoebere vs. State (2001) 6 NSC QR (pt. II) 755 @765.
He also stated that the evidence of DW1 under cross-examination when he stated “I did not follow him to his residence” led credence to the appropriateness or the validity of the rejection of the Appellant’s plea of alibi by the trial judge. It is further submitted that the trial judge has a duty to consider the credibility of the evidence adduced by the prosecution vis-a- vis. the alibi raised by the accused. He referred to the case of Onyegbu vs. State (1995 4 SCNJ 275. Learned counsel further submitted that it was evidently shown on the face of the record of the trial court that a thoughtful consideration was given to the Appellant’s plea of alibi and that same was placed side by side with the evidence adduced by the prosecution which actually broke down the Appellant’s alibi establishing same to be unmeritorious. The court was urged to so hold and to resolve this issue against the Appellant.
The grave men of the Appellant’s complaint on this issue was that the learned judge misplaced the duty of establishing a plea of alibi by requiring the Appellant to establish his alibi and that this has occasioned a miscarriage of justice.
It is contended by the learned counsel for the Appellant, that the Appellant gave detailed particularization of his whereabouts on the crucial day of the attack, including the specific place where he was, the people in whose company he was, and what transpired at the said time and place, and that the Appellant furnished comprehensive information which was capable of investigation by the police and which was fully investigated by the police. Learned counsel went further to argue that the learned trial judge who found it difficult to believe the evidence of pW1 to the effect that he was shot by the Appellant’s police orderly, did not find it difficult to the believe the evidence of PWI that the incident happened at about 2.30 pm.
Now the question here is what the alibi was provided by the Appellant in defence to the offence allegedly committed by him. It is worthy of note that the Appellant did not testify in his own defence. Learned counsel relied on the Appellant’s extra judicial statement to the police admitted in evidence as Exhibit 3. Therein, the Appellant stated thus:-
“…the last attack on my residence on a Monday I was informed by the wife through phone call that there was firing going on around mu house, this period I was at Unity Restaurant at Ikere-Ekiti with a senior brother to Daramola Asoju by NAME Tunde Asoju when the call came from wife. I later got a vehicle that took me to my residence in the same Ikere-Ekiti. On arrival to my residence I could observe (sic) a confusion and vehicle conveying some student away to police station. My orderly was with me at Ikere but he had earlier left to my house before’ the call from my wife came, I would not know if my police orderly shot at the student. He could be contacted to know what he saw when he arrived my residence…”
The alibi sought to be relied upon by the Appellant was that, at the material time of the incident on the 15th March 2004, he was at Unity Restaurant. PW3 John Emeje, the investigating police officer gave evidence to the effect that the Appellant raised the alibi in his extra judicial statement and he stated that because of the alibi raised by the 1st accused (Appellant) he proceeded to record a statement from one Ayodele Samuel Ologun, a native of Ikere-Ekiti in Ekiti state.
PW 3 testified as follows:
“My investigation shows that Ayodele Samuel Ologun corroborated the alibi raised by the 1st accused that he was in the restaurant of Samuel Ayodele Ologun when the shooting took place…”
Samuel Ologun Ayodele gave evidence as DW1. He testified as follows:-
“…On that day at about 1 p.m. the 1st accused person (Appellant) came to my shop in company of the 2nd accused who was his orderly. I sell drinks ii mi shop.
As soon as 1st accused took his seat there was a phone call which he answered, and what he told me was that “those boys’ had come again by which he meant the students of college of Education. We were in panic because the students had come twice to vandalize his house. The 1st accused then attempted to go home, but unfortunately, the vehicle in which he came had been taken hack to town by the driver. When he enquired it was disclosed to us that the 2nd accused also went with the driver of the vehicle.
We were still on that spot when somebody told us that somebody who was injured had been taken to Ado Ekiti. It was after this that the driver came, and the 1st accused left to check things in the house.”
Now, from the evidence as reproduced above, has the defence of alibi been established by the Appellant?
Alibi is a radical defence and simply means “elsewhere”. It means that an accused was somewhere else at the material time of the commission of an offence and he cannot possibly be at the scene to partake in it. If it succeeds, it would mean that the accused was in no way involved in the crime unlike other defences which may still have implicated or connected him with a particular offence. It is no longer in doubt that if an alibi is properly raised, it is the duty of the prosecution to investigate it. It is however the duty of the accused person relying on an alibi to give details of the alibi he has set up to enable the prosecution or the police to investigate it’ His duty involves letting the police know at the earliest opportunity where and with whom he was at the material time. That is, he has to furnish the prosecution with the full particulars of his alibi. He must furnish his whereabouts and those present with him at the material time of the incident. It is the duty of the prosecution to investigate same carefully. The prosecution has a duty to dispute same. See Shehu vs. State (2010) 8 NWLR (Pt. 1195) 112; Olaiya vs. State (2010) ALL FWLR (pt. 574) 1; Akpan vs. State (1991) 3 NWLR (Pt. 182) 646; Ogoala vs. State (1991) 2 NWLR (pt. 175) 509; Ozaki vs. state (1990) 1 NWLR (pt.124) 92. If he does not disclose this, the police cannot be expected to go on a wild goose chase. See Nwabueze vs. State (1988) 4 NWLR (pt.86) 16; Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92; Esan Gbedo vs. State (1989) 4 NWLR (pt.113) 57; Eyisi Vs. State (2000) 15 NWLR (pt. 691) 555; and Ani Vs. State (2009) 10 NWLR (pt.1168) 443.
In the instant case, the Appellant in his extra judicial statement to the police Exhibit 3 stated that on the day of the incident he was at Unity Restaurant at Ikere Ekiti with a senior brother to Daramola Asoju by name Tunde Asoju when the call from his wife came. PW3 stated that he investigated and found the Appellant to be at Unity Restaurant on that day. The owner of the Restaurant testified that the Appellant came to the Restaurant around 1.pm. He only stated that he came in company of his orderly.
PW1, Gbenga Jaiyeola, the victim of this tragic incident pin the Appellant to the scene of crime. He testified as follows:-
“On getting to the house of the 1st accused one of the Mobile Policemen told us that the 1st accused was not around. This was about 2.30p.m. We attached to deliver the letter we brought for 1st accused through a Mobile-man, but before we could do those three vehicles came putting on their headlamps. The 2nd accused came down from one of vehicles, and t approached him to explain our mission, but before t could say anything, he started to beat me and blow us and a command tone came that he should realsi bullet from his gun he was hooting (sic). He obeyed that command and fired the gun thereby he shot my left leg at a very close range and the bullet released also hit some of the students among who are Seinde Daramola and Segun Awe.
The person who gave the command to 2nd accused to shoot was Chief Okondo, the 1st accused who was then sitting in the vehicle. He later came out from the vehicle and shot my other leg with a gun he too was holding.
As I was swimming in the pool of my own blood, the 1st accused ordered that I should be put inside the boot of a red
Mazda car which was one of the three vehicles that came with their headlamps on…”
In the instant case, even though the Appellant was at Unity Restaurant about 1 p.m. as stated by DW1, the evidence of PW1 had fix the Appellant at the scene of crime, therefore the defence of alibi put forward by the Appellant collapses. Exhibit 3, the Appellant’s extra judicial statement to the police remained the only explanation in answer to the charges against the Appellant who chose or elected not to testify, It is trite that whoever proffers defence of alibi must give detailed particulars of the other places where he was at the time when the crime was committed. I therefore agree with the submission of learned counsel for the Respondent that the non particularization as to the timing and movement of the Appellant make his plea of alibi a worthless venture.
The importance of time element in defence to the commission of crime has long been over emphasized. See Dagayya vs. State (2006) 7 NWLR (pt.980) 637 @ 663, per Niki Tobi, J.S.C., when he stated thus;
“In view of the importance of time element in the defence, months, days, hours, minutes and even in some cases seconds count in the determination of the criminality of the accused person. After all, in the determination of criminal responsibility, minutes count if it not seconds. It is a fact that an offence could be committed within a second of the clock. And so the court has to take into consideration the time element to the minutest detail in its search for criminal responsibility on the Part of the accused Person.
The defence of alibi crumbles the moments the prosecution gives superior evidence that is more believable evidence than that of the accused person not only at the scene of crime but also in the commission of the crime,”
DW1 testified that the Appellant came to the restaurant Unity around 1.pm. Restaurant in Ikere-Ekiti is only three kilometers away from the residence of the Appellant as shown by the record of appeal, and that the Appellant left the restaurant not long after he was told of the firing. So he could not be at the Unity Restaurant by 2.30pm. The Appellant also stated that when the call came from his wife that there was firing going on around his house, he later got a vehicle that took him to his house.
Therefore if the Appellant left Unity Restaurant anytime after 1.pm, for example between 1.30pm the Appellant would easily have been at his residence between 2.pm to 2.30pm as testified by PW1.
A plea of alibi is bound to fair when the accused person fails to discharge the entire evidential burden upon him by the rules. In the instant case the Appellant never mentioned when he left Unity Restaurant nor did he ever mentioned when he got to his house the scene of crime. I agree with the learned counsel for the Respondent that non particularization as to the time and movement of the Appellant make his plea of alibi worthless. In this regard, I cannot but agree with the finding of the learned trial judge at page 122 of the record of appear wherein he stated thus:
“Based on tack of precision as to time, in respect of alibi, the 1st Accuse d cannot be fixed to the Unity Restaurant he claimed to be at the time of 2.30pm when the shooting take place. He was at the Unity Restaurant for sometime after the hour of 1.00pm and he had got to his house about some kilometers away from restaurant. The alibi of the 1st accused cannot stand in the face of the evidence of PW1which fixed the 1st accused in the scene of crime.”
In the circumstances, it is my candid view that the learned trial judge has not misplaced any duty of establishing alibi as argued by the learned Appellant’s counsel in the instant case, It is trite that a criminal court’s finding of fact must be based on credible evidence or reasonable inference drawn from facts presented by the prosecution in a case. See Amadi vs. State (1993) 8 NWLR (pt. 314) 644; Onyegbu vs. State (1995) 4 SCNJ 275. In the instant case, the learned trial judge has demonstrated a dispassionate consideration of the evidence adduced by the prosecution vis-a-vis the defence of alibi raised by the Appellant and came to the conclusion rightly in my view that the alibi cannot stand in view of the evidence of PW1 which fixed the Appellant at the scene of crime. The only reasonable deduction in this case is that the Appellant was at the Unity Restaurant before the commission of the crime, between the hours of 1 p.m. as testified by DW1. His alibi is not well placed and does not therefore avail him. Consequently, this issue is resolved against the Appellant.
ISSUE No.2
Whether from the nature and circumstances of this case the prosecution proved his case beyond reasonable doubt.
In arguing this issue, learned counsel for the Appellant, Omotoso Esq., submitted that a plea of alibi by an accused person must not only be investigated but must be disproved. It is his view that where an accused sets up an alibi, the onus still lies on the prosecution to prove beyond reasonable that the accused was at the scene of the offence as alleged, relying on the authority of Dogo vs. state (2001) 3 NWLR (pt. 699) 192 @ 207 – 208. It is also his view that an accused does assume the responsibility of proving the answer.
He submitted that it is the law that the guilt of the accused person must be proved beyond reasonable doubt as this is the essence of the provision of the Constitution where a person is presumed innocent until his guilt is proved. The case of Obiako vs. State (2002) 10 NWLR (pt.776) 612 @ 627 was cited in support. Learned counsel referred to the evidence of DW2, Daramola Olaseinde Olawole, also the alleged victim of the shooting incident and submitted that the prosecution deliberately decided not to call this eye witness who was one of the victims of the shooting incident and that this failure ought to have created a doubt in the mind of the court.
He also stated that PW3 stated that he obtained the statement of pw1 who mentioned Dw2 as one of those students that visited the residence of the Appellant on the day of the incident and that pW3 stated that he found Dw2 incoherent in hid statement to the police. Learned counsel therefore submitted that as a result of the length of time between the date of incident and the date the statements were obtained by the police from the alleged victims of the offence, a reasonable doubt ought to have been created in the mind of a reasonable tribunal that could lead to the acquittal of the Appellant. He contended that the learned trial judge found as a fact that the investigation of the alleged crime did not start until over two (2) years.
It is his view that the failure of the learned trial judge to consider the effect of this length of time on the probative value of the evidence before him occasioned a miscarriage of justice.
Learned counsel also referred to the evidence of pw4, the Ballistician wherein he testified that there was deposit of rust and a little grease indicating that the barrel gun recovered from the Appellant was not fired after it was last cleaned and submitted that the evidence of PW4 tends to show that the guns was not used after they were last cleaned, and that the impossibility of knowing when the guns were last cleared is a reasonable doubt which ought to have been resolved in favour of the Appellant.
Learned counsel further submitted that the learned trial judge failed to consider the evidence of DW2 an eye witness to the incident and made no reference to the extra judicial statement, of DW2 marked as Exhibit 10. He submitted that the guilt of an accused must be brought home to him beyond reasonable doubt and any reasonable doubt ought to have been resolved in favour of the Appellant. It is also his view that the relationship between PWI’s late father and the Appellant ought to have created a reasonable doubt in the mind of the court and resolve same in favour of the Appellant. Learned counsel urged the court in view of the doubts created in the face of the record, to hold that the prosecution has not proved the case beyond reasonable doubt and resolve this issue in favour of the Appellant.
In his response to this issue, learned counsel for the Respondent Gboyega Oyewole, Esq., submitted that the learned Appellant’s counsel merely rehashed the earlier points canvassed and argued that the guilt of the Appellant was not proved beyond reasonable doubt as required by law and posited that there is no substance in his entire submission on this issue and urged the court to so hold. He submitted that it is trite law that proof beyond reasonable doubt is not one that must be beyond all iota of or shred of doubt, citing in support the of; Akinyemi vs. State (1999) 6 NWLR (pt.607) 449; and Onubogu vs. State (1994) 9 SC 1. Learned counsel further submitted that from the face of the record of this appeal abounds the fulfillment of the required standard onus as placed on the prosecution upon which any criminal conviction would be grounded. He submitted that the Supreme Court determined the extent of this duty on the prosecution and held that the doubt must be such as arising from some evidence before the court and not from the imagination and any conjecture or inference not supported by evidence. He referred to the cases of Olatekan vs. State (2001) 18 NWLR (Pt. 746) 793 SC 822; and Kalu vs. State (1998) 4 NWLR (pt. 90) 503. It is also submitted that in a criminal case such as attempted murder as in the instant case, can only be said not to have been proved beyond reasonable doubt when all essential ingredients of the offence charged are not proved, or when the accused is able to raise and sustain a plea of alibi, or when there are material contradictions in the evidence of the prosecution which touch on the root of the matter; or if the identity of the real culprit is actually in doubt such as to lead to a state of bewilderment in the mind of the trial court, or finally, if there is lack of sufficient evidence either direct or circumstantial. The following cases were relied upon; Ibeh vs. state (1997) 1 NWLR (pt. 484) 632; Okeke vs. State (1999) 2 NWLR (Pt. 590) 246; and Ifejirika vs. State (1999) 3 NWLR (pt.593).
On the Appellant’s counsel submission that the prosecution deliberately refused to calf a particular witness at the trial, the evidence of delay in the investigation of the alleged crime and when it is found as a fact that the investigation of the alleged crime did not start until two (2) years afterwards, the failure of the trial court to consider the effect of the aforesaid length of time on the probative value of the evidence before him, had occasioned a miscarriage of justice. Learned counsel for the Respondent submitted that there is nothing to fault the judgment of the trial court in rejecting this argument and that there is nothing alleging miscarriage of justice necessitating an invitation for any interference by this court.
Learned counsel also submitted that the law is settled that the prosecution is not required to call every available piece of evidence to proof its case, that it is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt, citing in support the case of Odili vs. State (1977) 4 SC 1 @ 8. On delayed investigation of the alleged crime, learned counsel submitted that time does not run against criminal prosecution and that a delay in criminal prosecution does not vitiate the proceedings of a competent court of trial.
Learned counsel also argued that the entire allegation under this issue does not in law and in fact constitute any miscarriage of justice. The court was urged to resolve this issue against the Appellant.
The Appellant’s issue No. 2 is challenging the conviction of the Appellant for attempted murder on the ground that the prosecution has failed to prove the case against the Appellant beyond all reasonable. The point of contention as raised by the Appellant’s that where an accused person sets up a defence of alibi, he does not assume the responsibility of providing the answer as the onus still lies on the prosecution to prove beyond reasonable doubt that the accused was not only present at the scene of crime but that he committed the offence. He submitted that this principle of law was misplaced by the learned trial judge. Another point of contention was that the failure of the prosecution to call DW2, Daramola Olaseinde Olawole to give evidence before the trial court, being an eye witness to the incident that happened on the 15th March , 2004 and also a victim of the shooting In the house of the Appellant.
Learned counsel however stated that there was no count in the criminal charge against the Appellant that relates to the shooting of the said DW2. That a reasonable doubt ought to have been created in the mind of the learned trial judge over the failure of the prosecution to call this witness (DW2.) Another point also raised by the learned counsel for the Appellant is that the learned trial judge failed to consider the effect of the length of time on the probative value of the evidence before him and also the evidence of PW.4 the Ballistician, who testified that there was a deposit of rust and a little grease indicating that the barrel gun recovered from the Appellant was not fired after it was last cleaned. It is therefore the view of learned counsel for the Appellant that all these factors ought to have created doubt in the mind of the learned trial judge coupled with the fact that the father PW1 was a friend of the Appellant and could not have probably shot him and to resolve this doubt in favour of the Appellant.
It is trite that the commission of a crime by a person must be proved beyond reasonable doubt. The guilt of an accused can be proved by the confessional statement of the accused person or by the evidence of an eye witness, that is the person who was present at the scene of crime and saw it committed or by circumstantial evidence, that is evidence of surrounding circumstances, showing that the only reasonable conclusion is that it was the accused person that committed the offence.
In the instant case, the learned trial judge relied on the evidence of PW1, Gbenga Jaiyeola, an eye witness and a victim of the shooting incident in the house of the Appellant, as a result of which his left leg was amputated. The learned trial judge also considered the evidence of pW4 the Ballistician and came to the conclusion that the witness did not say that the guns had not been fired at all, but that they had not been fired after they were last cleaned. He found that it is the shooting of the gun that constitute an ingredient of the attack and not the cleaning of the gun.
It is a cardinal principle of our criminal justice system that it is duty of the prosecution to prove its case beyond reasonable doubt; however, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner’ of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on him by law.
Doubt in the mind of the court pre-supposes that the case against the accused person has not been proved beyond reasonable doubt and reasonable doubts which justify acquittal is doubt based on reason and arising from evidence or lack of evidence. It is a doubt which a reasonable man might entertain. It is not a fanciful doubt and it is not an imagined doubt as would cause prudent men to hesitate before acting in matters of importance. See Dibie vs. State (2007) 9 NWLR (pt. 1038) 30; Udosen Vs. State (2007) 4 NWLR Pt. 1023) 125; Onyia Vs. State (2006) 11 NWLR (Pt. 991) 265- Proof beyond reasonable doubt in essence does not admit of plausible and fanciful possibilities but it admit of high degree of cogency consistent with an equally high degree of probability.
Therefore, when a convicted person asserts that the prosecution has failed to prove his guilt beyond reasonable doubt before his conviction, it is for him to establish that it is so and it is the duty of an appellate court to examine the assertion against the whole background of the case and in particular against the evidence leading to the guilt of the Appellant.
In the instant case, the Appellant contended that the failure of the prosecution to call DW2, Daramola Olaseinde Olawole, who said he witnessed the incident of 1sth October, 2004 and was also a victim of gun shot ought to have constitute a doubt in the mind of the trial judge. It is trite that the law imposes no obligation on the prosecution, to call a host of witnesses to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has discretion in the matter.
In other words, the prosecution is not bound to call every witness to testify. All that it requires are the testimonies of witnesses who are necessary to prove its case beyond reasonable doubt.
In the instant case, the fact that the prosecution did not call DW 2 did not leave any vacum or gap in the prosecution’s case. In any case, this particular witness was called by the defence and it would have extracted whatever information it wanted from the witness. The evidence in chief of this witness has been found by the trial court to be contrary, with his extra judicial statement admitted in evidence as Exhibit 10 by the trial court. Therefore even if called, his evidence would have been of no evidential value. See Imhanria vs. Nigerian Army (2007) 14 NWLR (Pt. 1053) 76; Udo vs. State (2006) 15 NWLR (Pt. 1001) 179; State vs. Olatunji (2003) 14 NWLR (Pt. 839) 138; Nigerian Air Force vs. Obiosa (2003) 4 NWLR (Pt. 810) 233; Oduneye vs. State (2001) 2 NWLR (Pt.697) 311.
While, I agree with the learned counsel for the Appellant that it is desirable to call witnesses who are vital and material to the determination of a case, such failure alone, cannot in my opinion be sufficient reason to quash the conviction of the Appellant where, as in this case there was the evidence of PW1 an eye witness and a victim of the shooting incident. There is no rule of law or practice which says that once a particular witness is not called, it is fatal to the prosecution’s case or a reasonable doubt ought to have been created in the mind of the learned trial judge. It is the discretion of the prosecution to call witnesses of its choice, who in its estimation would sustain the charge. It does not therefore lie in the mouth of the defence to urge the prosecution to call a particular witness as the prosecution is not bound to call every witness. See State vs. Olatunji (2003)14 NWLR (pt. 839) 138; Udo vs. State (2006) 15 NWLR (pt.1010) 179; Izirem vs. State (1995) 9 NWLR (Pt. 42) @ 385.
Having stated the position of the law, lam therefore of the humble view that the failure to call DW2 by the prosecution is not fatal to its case and has not accasioned any miscarriage of justice or doubt in the mind of the learned trial judge. In any case, the said witness was called by the defence and one wonders why the defence is over blowing the situation.
Learned counsel for the Appellant also made heavy weather on the evidence of PW4, the Ballistician. He stated that on the 10th October, 2006, he received one AK 47 rifle No.K035/6013 and a single barrel short gun No.060064 made in Russia. His report on examination and ratification was admitted as Exhibit’6′. He testified that from his examination of the barrel, he discovered that there was deposit of rust which indicated that the gun was not fired after it was last cleaned. It was lethal weapon and a service rifle in good working condition.
The examination of the single barrel short gun showed rust and a little grease indication that it was not fired after it was last cleaned. That it was a lethal weapon which was a personal firearm. It was in a good working condition. The witness further stated that it was not possible for him to know when the two rifles were last cleaned. He also stated that it was not that the guns he examined in the instant case had not been fired at all, but that they had not been fired after they were last cleaned. The witness clarified himself when he stated that the gun was not fired after it was last cleaned, was not that the guns had not been fired at all. The guns must have been fired and PW I was shot on his left leg as a result of which his leg was amputated and the guns are lethal weapons in good working condition. After all the guns were sent to the Ballistician for examination and verification for over two and half years after the incident. Traces of rust could have been a possibility.
It has been contended by the Appellant that the investigation into this matter, the subject of the present appeal did not start until after a period of over two ‘years and this he contended occasioned a miscarriage of justice as the learned trial judge failed to consider the effect of the length of time on the probative value of the evidence before him. By this submission, learned counsel for the Appellant is complaining of delayed investigation. He has failed to take into account the period PW1 was in hospital on admission before and after the amputation of his leg. It is worthy to note that the Appellant has not complained of delayed trial and it is trite that time does not run against criminal prosecution. In this regard I also wonder as did learned counsel for the Respondent how a perceived delay in crime investigation can vitiate the proceeding of a competent court of trial. This issue is also resolved against the Appellant.
Based on the foregoing, at is my candid view that this appeal lacks merit and it is hereby dismissed. The decision of the learned trial judge delivered on the 4th day of May, 2009 convicting and sentencing the Appellant to 3 years imprisonment, with an option of N20, 000.00 fines is hereby affirmed.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother Uwani Musa Abba Aji, JCA.
The issues raised have been comprehensively and adequately analyzed and resolved. I agree with the reasoning and conclusion arrived at in affirming the judgment of the trial court and dismissing the appeal for lacking in merit.
I wish to reiterate that where a defence of alibi is raised the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. The defence has to be promptly and properly raised. In this case the appellant did but, where the accused fails to discharge the burden on him to give the correct and full particulars of the facts upon which he relied on in his defence of alibi, the Police is not obliged to investigate his defence and cannot do so beyond the particulars given. See RASHEED OLAIYA VS. THE STATE (2010) 5 NCL 13 (2010) 1711 FWLR (PT. 574); ADEWALE KABIRU VS. A.G. OGUN STATE (2009) 5 NWLR P. 209; ADIO V. THE STATE MGENE (1966) WNLR 4 SC.
In the present case/ the Appellant said he was at the Restaurant at 1:00 pm, he should have mentioned those he was with, how long he was there and when he left, so as to clearly exclude him from the scene of the crime and could not have committed the offence, in this case which took place at 2.30pm. The Appellant did not explain his where about and/or his movement and activities up till the time the offence was committed. Merely saying he was at the Restaurant at 1:00pm was not enough. See NSOFOR VS. STATE (2002) 10 MLR (PT. 775) 274; YANOR STATE (1965) 1 ALL NLR 193 AND SALAMI VS. STATE (1988) 3 MLR (PT. 85) 670.
It is trite that the law requires that a crime must be proved beyond reasonable doubt, it does not mean or envisage that such proof be beyond the shadow of doubt. See MILLER VS. MINISTER OF PENSION (1947) 2 ALL E.R. P.372 where Lord Denning had this to say concerning proof:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice. ”
See also MOSES JUA V. THE STATE (2010) 5 NCC 143. The Appellant has not been able to explain in detail or with full particulars that he was not at the scene of the crime at the time of commission having raised the defence of alibi.
It is trite law that an appellate court will not ordinarily interfere with the findings of a trial court unless such findings are not supported by credible evidence and have occasioned miscarriage of justice, these have not been proved in the present case.
For the fuller and detailed reasons in the lead judgment, I also hold that this appeal is devoid of merit and I also dismiss same and affirm the judgment of the lower court.
HARUNA MOH’D TSAMMANI, J.C.A.: I have read the lead judgment of my learned brother Uwani Musa Abba Aji, JCA, just delivered. My Learned Brother has admirably and exhaustively discussed the relevant issues that arose for determination in this appeal. I therefore unhesitatingly agree with his reasoning and conclusion therein.
I only wish to add that the Law on alibi as a defence in criminal trials has been well settled in long time of judicial decisions in this country. It is now settled therefore that an accused person who relies on the defence of alibi has the evidential burden to show that he was infact not at the scene of the crime alleged at the time the offence was committed. That burden though may be discharged on a preponderance of evidence, must be such as would place the accused person at a place outside the scene of crime. To discharge that burden, he must disclose adequately the material or data of where he was at the time the crime was said to have been committed so as to enable the prosecution to properly investigate same. See AZEEZ -VS- STATE (2005) 8 N.W.LR (PT. 927) P. 312 and DAGAYYA -VS- STATE (2006) 7 NWLR (PT. 980) p.637. In the instant case, based on the totality of the evidence adduced, both from the prosecution and the defence, there was a gap in the explanation of the movement of the Appellant immediately he received report of the attack on his residence. This has proved disastrous to the alibi put by him.
For this reason and the fuller reason given by my learned brother in the Lead Judgment, I too will and hereby dismiss this appeal. The conviction and sentence imposed on the appellant by the learned trial Judge is accordingly affirmed.
Appearances
Emmanuel Bamidele Omotosho, Esq.,For Appellant
AND
Gbemiga-Adaramola, Esq. D.D.P.P. Ministry of Justice, Ekiti-State,For Respondent
