EHIMEN ESENE v. THE STATE (2013)

EHIMEN ESENE v. THE STATE

(2013)LCN/6744(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2013

CA/B/374C/2010

RATIO

WORDS AND PHRASES: ALIBI

The word “alibi” in its original Latin con as an adverb, means “elsewhere”. See: Gachi V. The State (1965) NMLR 334; Nwabueze V. The State (1988) 4 NWLR (Pt.86) 16. Per SIDI DAUDA BAGE, J.C.A.

INGREDIENTS TO ESTABLISH CONVICTION FOR ARMED ROBBERY

Before Their Lordships

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

Between

EHIMEN ESENEAppellant(s)

AND

THE STATERespondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Acha J. of the High Court of Justice, Edo State, Benin Judicial Division delivered on the 2nd day of June, 2010 in charge No.B/3C/2008. The State v. Ehimen Esene, in which the learned trial Judge convicted and sentenced the Appellant (then accused person) to death by hanging on the charge of armed robbery, under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of Nigeria 1990. The Appellant, as accused person in the court below, was charge as follows:
“That you Ehimen Esene (m) on the 23rd of December, 2006 at Ako – Iyobhere bush, Irrua, in the Irrua Judicial Division robbed one Franca Okhuonurie (F) of the sum of N42,000:00 cash, a bag of salt valued N600:00; a bag of rice valued N7,000:00; a wrist watch and necklace valued N22,400:00 and at the time of the robbery you were armed with offensive weapon to wit a knife and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act R 11 2004.”

Briefly the prosecution’s case at the High Court was that pw1, one Franca Okhuonurie, who testified that on the 23rd December, 2006, she was returning from Abuja and that she boarded a bus which dropped her at AP Junction, Irrua, she further stated that the Accused Person rode a motor bike to where she was and requested her to ride in it to Obedu 1 and that the accused charged her the sum of N300:00 to take her to Obedu but they finally settled for N200:00. PW1 further stated that she asked the Accused Person to take Akho Junction into Irrua but the accused said that there were policemen at the junction so he took Agric Road instead, she also stated that as they were going the Accused rode his bike and passed the Agric Junction and that he drove the bike into the bush and asked her to come down. She stated that the accused started beating her inside the bush and that he asked her to give him all she had otherwise he would stab her with the knife he was holding. She also stated that the Accused person gave her a bite on her left side breast and she fainted. PW1 also stated that she was in the bush till the following morning and the incident started about 9pm in the night. She testified that on the day of the incident she was carrying a bag of rice, bag of salt, cloths, meat, necklace, wrist watch, shoes and the sum of N42,000:00 given to her by her brother in respect of the house he was building.
She also stated that on the 26/12/2006 her brother returned from Lagos and on the 27/12/2006 as she was going with her brother to report the incident to the police, at Akho Junction she identified the accused as the person who robbed her and that she showed him to her brother and that when the accused saw her he started to run with his motorbike and that they followed him up to a house he entered and that they went to the Police station to bring policemen. Pw1 also testified that as they were coming back to the house, the accused saw them and ran into a mechanic workshop where the police arrested him.

Following the armed robbery attack on the PW1, the accused was arrested by the Police and was taken to Irrua Police Station for investigation.

The Appellant was initially taken to Irrua police station and after investigation, he was charged to court for stealing and assault occasioning harm. And as the trial commenced, the Trial Magistrate, after going through the facts of this case ordered that the matter be further investigated as there were atoms of violence in this case. The case was transferred to the Anti-Robbery section of the State CID Benin City for further investigation and the accused was finally arraigned at the Magistrate Court from where he was remanded in prison custody before being charged on information to the Armed Robbery and Firearms Tribunal Benin where the case was tried and concluded.

Dissatisfied with the Judgment of the trial court, the Appellant filed his Notice of Appeal dated 4th of June, 2010, contained on pages 93 and 94 of the printed records. From the said Notice of Appeal the Appellant formulated a sole issue for determination to wit:
“Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt.”

On the other hand, the Respondent in its brief of argument dated 18/2/13, filed on the 19/2/13, and also deemed as properly filed on the 19/2/13, adopted the sole issue as formulated by the Appellant to wit:
Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt.”

In arguing the appeal, learned counsel to the Appellant submitted that, it is settled beyond question that in criminal cases especially armed robbery offences which carry death penalty, that the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt see:- Morka v. The State (1998) 2 NWLR (pt.537) 294 at 301.
Also see Section 138 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. see: Cyrracus Ogidi & Ors. v. The State (2005) 1 SCNJ 67 at 85 – 86. The onus is static and does not shift.

Learned counsel submitted further that the only evidence relied upon by the prosecution against the Appellant (accused) is that of the PW1 contained at page 37 lines 11 – 15 of the records. PW1 did not state how she was able to identify the robber or the Appellant in particular. She did not testify as to the clothes he was wearing or his appearance or his features or what struck her about the Appellant as the robber she saw that night. Her evidence connecting the Appellant to the crime is her bare assertion (and without more) that the Appellant was the robber she saw that night. On what amounts to proper identification, see: Sunny Ndidi v. The State (2007) 41 WRN 1 at 1 – 16 or (2007) 5 SCNJ 274 at 287 – 288; Alabi v. The State (1993) 1 NWLR (pt.307) 511.

Learned counsel submitted further that it is pertinent to note that this whole incidence happened at about 9:00 pm in the night. She made statement 3 days after the incidence where she stated that she identified the Appellant in company of her brother on the road as the person who robbed her of her property.
Learned counsel further submitted that going by the evidence of PW1, can it be possible for a Robber who carried all these loads on top of his motor-cycle also be in a position to attack PW1 and robbed her of those items she mentioned in her evidence in court? None of these items mentioned by PW1 was recovered by the police or any of such items tendered in court as Exhibit. See: Nwomukoro V. The State (1995) 1 NWLR (Pt.372) 432 at 444 para “B – C”.
Learned counsel further submitted that the principles in the case of Alonge v. IGP (1959) 5 SCNLR 516 where it was held that the evidence of a single witness if believed by the court can establish a criminal case if it is a murder charge. The charge the present Appellant faced at the trial court was Armed Robbery, was the trial court right in convicting the Appellant based on the evidence of PW1 and coupled with the fact that the Appellant was facing a robbery charge?

Learned counsel further submitted that for the offence of Armed Robbery, the prosecution must prove the following elements beyond reasonable doubt:
(1)That there was Robbery;
(2)That it was Armed Robbery;
(3)That the accused was involved.

Learned counsel further submitted that, a salient question still remains that if the Robber (Appellant) was truly armed with a knife when he attacked PW1 why then did he choose to attack PW1 with a fist blow and to the extent of biting her on her breast instead of using the purported knife to attack PW1? PW1 did not state in her statement to the police that the alleged Robber attacked her with the said knife.

Learned counsel further submitted that, the evidence of PW1 at the trial court is at variance with her statement to the police which she made soon after the incident. The court have consistently held that where there are such contradictions and inconsistencies in the evidence before a criminal court, such as to cast reasonable doubt upon the guilt of the accused person, such accused person should be given the benefit of the doubt and not be convicted on the basis of such unreliable evidence. See: Onubeogu V. The State (1974) 9 SC 1; Akosile v. The State (1972) 5 SC 332.

Learned counsel submitted further that from the statement of the Appellant to the police an issue of alibi was raised by the Appellant as to where he was on the day of the incident. The police in their evidence at the trial court did not testify that they investigated the statement with respect to whether Appellant was with the said man on the day of the incident. The court have consistently held that once a defence of alibi is put up, it is for the police to investigate it properly because failure to do so could raise reasonable doubt in the mind of the tribunal and lead to quashing the conviction: See Odili v. The State (1977) 4 SC 1; Onafowoken v. The State (1987) 13 NWLR (pt.61) 538; Adedeji V. The State (1971) 1 All NLR 75; Nwogu v. The State (1986) 4 NWLR (Pt. 35) 438.

Learned counsel finally submitted that, it was the duty of the prosecution to prove the guilt of the Appellant beyond reasonable doubt and it does not lie on the Appellant to prove his innocence.

In its response to these submissions, the Respondent submitted that, in criminal trials the onus is on the prosecution to prove its case beyond reasonable doubt as required by law. see Section 138(1) (2) and (3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. For the prosecution to succeed in a charge of armed robbery, it must prove the following ingredients as has been stated by the courts in a plethora of cases namely:
(a) That there was a robbery
(b) That the robbers were armed
(c) That the accused person took part in the robbery. See; Bozin V. The State (1998) 1 ACLR 1 at 2 ratio 1; Eke V. The State (2011) Vol. 200 LRCN 149 – 162 at 169 Vol. 7 Ebeinwe V. The State (2011) Vol. 201 LRCN 224 ratio 5.

Learned counsel further submitted that the prosecution successfully proved beyond reasonable doubt that PW1 was robbed on the 23rd day of December, 2005 and that the robbery was an armed robbery. PW1 who was the victim of the robbery and an eye witness in her evidence before court graphically showed how it happened. See page 37 lines 19 – 29 of the record of appeal. Also at page 38 lines 2 – 5 of the record of appeal. PW1 was consistent even under the heat of cross-examination. Also the evidence of PW2 a brother to the PW1 who though did not witness the robbery incidence but gave evidence as to the fact that he met PW1 in a critical condition with a swollen face. Also in proof of armed robbery attack on the pW1, the weave-on hair which the Appellant forcefully removed from the head of PW1 was tendered in evidence and admitted as Exhibit P – 7. The PW1 also gave evidence to the fact that the Appellant bite her on her left breast which fact was never controverted by the defence. PW3 and PW4 who investigated the matter gave evidence as to their findings that the PW1 was robbed and that the robbery was an armed robbery. In addition, PW1 emphatically stated both in her two statements and evidence before court that the Appellant threatened to stab her with the knife he was holding. See the Supreme Court’s definition of robbery in the case of Ebeinwe V. The State (2011) Vol. 201 LRCN 220 – 238 at 224 ratio 4 & 5. The Evidence of PW1, PW2, PW3, and PW4 were never discredited by defence. See Ebeinwe V. State (Supra).
Learned counsel submitted further that, the PW1 positively identified the Appellant at the earliest opportunity as the person who robbed her and disposed her of her money, a bag of salt, a bag of rice, a wrist-watch and a necklace on 23rd day of December, 2006. She was very emphatic as to her identification of the Appellant in her evidence before the court. See pages 28 lines 25 – 28; 37 line 15, 38 lines 13 – 21. Evidence of the pw2 at page 40 lines 3, 8 – 11.
Learned counsel further submitted the identification of PW1 was very strong and positive, she stated that there was light at AP Filling station and the Appellant also put on the light of his motor bike so she was able to see his face, both the Appellant and the PW1 also spent some time haggling the fare, which face the PW1 further had opportunity to see. The PW1 at the earliest opportunity in her very first statement dated 27/12/2006, she stated that she was able to identify the Appellant, stating that she saw him very well before he conveyed her on his motorcycle. She said Appellant was riding a red cargo motorcycle and he was wearing a jeans trouser and a jeans jacket. She confirmed same in her second statement dated 15/3/2007. The testimony of PW1 was corroborated by the PW2 who stated in his evidence that PW1 identified the Appellant immediately she sifted him and ran away and when they got to the Appellant’s house PW1 promptly identified the clothes on the rope as the ones the Appellant wore when he robbed her. The Appellant never denied ownership of the clothes, which were admitted in evidence as Exhibit p.3 and p.4. The law is that, the best identification of the accused person is by the victim, or the witness of the crime. See: Christopher Okosi V. The State (1998) 1 ACLR 281 and 284; Nwatubuocha v. The State (2001) Vol. 1 LRCN 7 at 4 ratio 2; Sunday Ndidi v. The State (2007) All FWLR (Pt.381) 1617; Osuagwu v. The State (2009) 1 NWLR (Pt.1123) 527 ratio 2.

Learned counsel further submitted that the defence of Appellant was a complete denial without more at the lower court. Appellant did not raise any alibi in his two statements which were admitted in evidence as Exhibits P-1 and P-2, rather both statements are replete with contradictions. In Exhibit P-1 which is the first statement made by the Appellant dated 27/12/2006, the Appellant stated he carried a man from Eguare – Irrua to Opoji at about 7:30 pm on 23/12/05 and that on their way, they saw a bag containing assorted clothes, money and some food items and that the man asked the son to carry the items to his house with a wheelbarrow, that he can identify the man’s house. In Exhibit P-1 Appellant did not raise any alibi. Appellant failed to state whether he was with the said man by 9pm which is the time of the robbery. He also failed to state the name of the man or give his house address. Appellant in Exhibit P-2 which is his second statement given at the state CID and dated 5/3/2007, now he claimed he stopped his commercial cycling work at 6:30pm on 23/12/06, contrary to his statement on Exhibit P-1 that he carried a man at 7:30 pm on the same day. In both statements, P-1 and P-2, Appellant did not state that he was at home at 9pm on 23/12/06, which is the time and date the crime was committed. He mentioned he was in the house at 9pm of 23/12/2006 in his evidence before the court on 11th of January, 2010 on pages 48-49 of the record of appeal lines 16 – 19.

Learned counsel further submitted that the above testimony of the Appellant during trial is a very poor attempt at raising an alibi and was not sufficient to shift any burden to the police to investigate same. The Appellant attempted raising the alibi during trial rather than at the earliest opportunity, and so failed to give the police the opportunity to investigate same, raising it during trial was too late, and was an afterthought. Appellant failed to give particulars of where he was, and the names or particulars of the person(s) he was with when the crime was committed.

Learned counsel further submitted that, PW1 in both her statements and her evidence before court gave a consistent graphic and detailed account of how the Appellant robbed her, which testimony was corroborated by the PW2, PW3 and PW4, and the court was right to have believed her. See Bolanle V. The State (2010) 4 WRN 26 at 30 ratio 4; Usung V. The State (2010) 5 WRN 132 at 143 ratio 14; Isibor V. The State (2002) FWLR (Pt.843); (2002) 4 NWLR (Pt.758) 741; Durwode V. The State (2001) 2 ACLR 503 at 510 ratio 18; Kazeem V. The State (2009) 29 WRN 43 at 55 ratio 10 & 13; Michael V. The State (2009) 2 WRN 23 – 53 at 31 ratio 11; Nwaturuocho V. The State (supra).

Learned counsel further submitted that all the essential ingredients of the offence of armed robbery, have been proved by the prosecution in this appeal and the proof is beyond reasonable doubt. See: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523. This court is urged not to interfere with the findings and verdict of the lower court, which has not been shown to be perverse. See: Adedara V. The State (2009) 52 WRN 66 – 154 at 73 ratio 4; Salami V. COP (2009) 22 WRN 27 – 67 at 36 ratio 8; Amusa V. The State (2009) 59 WRN 1 – 36 at 6 ratio 2.

On the part of this court, the submission of counsel on the sole issue set out for the determination of this appeal is carefully examined.

The Law is settled that for an accused person to be convicted of armed robbery under Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act R11 2004, the prosecution must prove not only that robbery was committed by the accused but also that the accused was armed with firearms or offensive weapon and that the weapon or firearms must come within the meaning of the words used in Section 9 of the Act. So far the offence of robbery under the Act, stealing by putting a person in fear of violence is enough to constitute the offence.
Kalgo, JCA (as he then was) in Peter Nwomukoro & Ors V. The State (1995) 1 NWLR (Pt. 372) 432 at 443 stated as follows:
“It is settled law and therefore trite that for the prosecution to succeed in proof of the offence of armed robbery there must be proof beyond reasonable doubt of the following:
(1) That there must be robbery or series of robberies
(2) That the robbery or each robbery was an armed robbery
(3) That the accused was one of those who took part in the armed robbery. See: Bozin V. The State 2 NWLR (Pt. 8) 465 at 469; Amina V. The State (1990) 6 NWLR (pt.155) 125 at 135; Okosi V. Att. Gen. Bendel State (1969) 1 NWLR (pt.100) 642; Nwachukwu V. The State (1985) 1 NWLR (pt.11) 218; Ani V. The State (2003) 11 NWLR (Pt.83) 142.”

In the instant appeal, the prosecution to establish the first ingredient of the offence of Armed Robbery against the Appellant relied wholly on the evidence of the PW1, who was the victim, and the only eye witness to the commission of the offence alleged. Briefly again for the purposes of clarity, on the 23rd of December, 2006, PW1 said she was returning from Abuja, and the bus she had boarded dropped her at a place known as AP Junction in Irrua. Shortly afterwards she boarded the motor bike of the Appellant for a fare to take her to Obedu Village. On their way, she asked the Appellant to take Akho Junction into Irrua but the Appellant refused and told her that there were policemen at the Junction so he instead took another Road known as Agric Road. The Appellant drove past the Agric Road and drove the bike into the bush and asked her to come down. The Appellant started beating her inside the bush and asked her to give him all she had otherwise he would stab her with the knife he was holding. She gave him all that she had, he forcefully removed the weave-on on her head and also gave her a human bite on her left side breast and she fainted, he left with his bike carrying the items he robbed from her along with him while she woke up the next morning. The matter was finally reported at Irrua Police Station before it was transferred to the State Criminal Investigation Department in Benin for further investigation, before it was charged to court for trial.
On the side of the Appellant, there was a general denial of the commission of offence of robbery. Based on those facts as contained in the evidence of PW1 and those investigations which followed the report made to the police and the subsequent evidence of PW3, and PW4; the investigation police officers, the first (1st) ingredient in the proof of the offence of Armed Robbery was established by the prosecution, i.e. there was a Robbery on the 23rd of December, 2006, and that the PW1 was the victim.

On the 2nd ingredient to be proved by the prosecution is that the robbery or each robbery was armed robbery. From the record before the court, PW1 the only eye witness to offence mentioned that when the Appellant drove her into the bush he asked her to give him all that she had otherwise he would stab her with the knife he was holding. From the evidence of PW1, in the record before this court, the Appellant did not use the knife on the PW1 after threatening with it.
He forcefully removed her head weave-on and gave her a human bite on her left breast and she fainted as a result. Nothing was mentioned about the knife again. Whether he was still holding it or dropped it when he had resorted to the physical attack on her. The said knife was never recovered and never tendered in evidence as an Exhibit. Let me pause here for a moment to consider knife, although it was not stated in the record of appeal whether it passes for a firearm or offensive weapon. Without reproducing the provisions of Section 9, which is now Section 11 of 2004 Armed Robbery and Firearms Act, no doubt a knife by its nature passes for an offensive weapon. The question that still remains is, why did the Appellant abandone the knife and resorted to the use of physical assault on the PW1? Was it that the PW1 did very well, co-operated with the Appellant by handing over as requested all her belongings or what? Was the knife still in the hand of the Appellant during the physical assault or he had dropped it before continuing with the assault. Let me mention here and now; that, it is not the law; that, the firearms, or the offensive weapons used, must be tendered in proof by prosecution to commission of armed robbery. This issue has since been settled by the Supreme Court in case of Fatai Olayinka V. The State, 30 NSCQR 149 at pp 162- 163. Tabai JSC (as he then was) stated as follows:
“I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person. Martins V. The State (supra) and Alabi V. The State (supra) cited by the Appellant in support of the submission did not lay down or restate any such principle. Whether or not the prosecution needed to tender the weapon with which the Appellant allegedly committed robbery depends by and large on the character and circumstances of the case.”
In his contribution to the same Judgment, Niki Tobi in Fatai Olayinka V. The State (Supra) at pp.172 – 173 stated:
“What makes an offence under the Act in which the accused persons are charged one of the armed robbery, is the use of firearms as offensive weapon. Now the proof of Corpus delicit in an armed robbery case consist of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking. I believe that intimidation or constructive force by which what is commonly described as fear of God is put in a person and in which a crime of robbery is committed shall include all administration of force or menace and other means by which the victim is put in fear sufficient to sustain at the material time free exercise of his will power as to make it awfully difficult or near impossible for him to offer any resistance to any one taking his property.”

The decision of the respected learned Jurist above aptly described what the evidence in the present appeal reveals. PW1 the victim mentioned the Appellant at the first stop in the bush, brought out a knife, which put her into great fear. Her evidence on the said use of the knife as a weapon for the commission of the offence was never discredited at cross-examination by the Appellant. The Appellant on his part did not bring in a better defence to counter that evidence of PW1. That piece of evidence therefore stands unimpeached. In that regard therefore, the second (2) ingredient of the offence that the robbery was an armed robbery stands proved against the Appellant. Issue No. 2 resolved against the Appellant in favour of the Respondent.

This court shall move now to consider the 3rd ingredient placed for proof on the prosecution for the offence of armed robbery, to wit, whether that the accused was one of those who took part in the armed robbery.
In the determination of this ingredient, two (2) legs have emerged:
(1) Identity of the Appellant (accused) as the robber.
(2) The Defence of Alibi raised by the Appellant.

On the identity of the Appellant, the learned counsel to the Appellant at page 8, paragraph 4.02 of their brief of argument made a heavy whether on the evidence of identification of the Appellant by the PW1, as the person who robbed her on that fateful night. He made reference to the PW1’s admission under cross examination at page 39 lines 13 to 15 of the Record of Appeal that:
“On that fateful day, accused was wearing a face cap. It was bent on his face. I cannot remember if anything was written on the face cap.”

Learned counsel had argued further that going by the admission by PW1 that the robber who robbed her that night was wearing a face cap and also coupled with the fact that the Robbery incidence took place at night, the trial court could have taken these facts into consideration before convicting the Appellant on the sole evidence of identification of PW1.
The Respondent replied this contention of the Appellant on the identification issue, at page 8 of their brief of argument, the 4th paragraph as follows:
“We respectfully submit that the identification of the Appellant by PW1 was very strong and positive, she stated that there was light at AP Filling Station and the Appellant also put on the light of his motor bike so she was able to see his face, both the Appellant and the PW1 also spent sometime haggling the fare which gave the PW1 further opportunity to see the Appellant.”

No doubt the submission made by the Respondent is strong and positive. The Appellant made no answer to the fact that, at the time of haggling the fare, to board the motor bike, light from Electricity at the AP Filling Station was on, and it took some moment to agree on the fare, which afforded PW1 the opportunity to see him well. The head light from the motor bike also assisted in bringing out the Appellant.

The trial Judge after evaluating the two sets of evidence at page 76 lines 11 – 18 of the record of appeal stated as follows:
“Apart from the fact that PW1 was able to recognize accused person who robbed her there is also the evidence adduced by the prosecution that in the house of the accused person, the clothes he wore on the day of robbery were found and PW1 recognized them. The clothes were tendered as Exhibits P – 3 and P – 4. Also tendered was a face cap which PW1 said accused person denied that fact that he wore the clothes on the 23-12-2006, I do not believe him.”

This court will state here that, the issue of identification of an accused person to a crime has left an ongoing controversy. One fact which remains very central in the controversy is that whether an accused person was properly identified as the one who was a party to the commission of a criminal act is a question of fact to be considered by the trial court on the evidence adduced for that purpose. In providing a lead way to this controversy, Belgore JSC (as he then was) in Christopher Okosi & Anor V. The State (1989) 1 NWLR (Pt.100) 642 at 656 – 653, held as follows:
“Identification evidence has been a thorn in the flesh of many a judicial system as there is always that lurking danger of mistaken identity. Evidence of identification may be quite honest but still mistaken. Also if, as in this case, the witness PW5 is identifying someone he never met before the date of the offence charged, then his identification of the Appellant will be largely a question of reconstruction. In such a process, there may exist the possibility of error of observation or recollection or both. It is here that counsel for the Appellant had a duty to effectively cross-examine to establish facts, probabilities and possibilities of mistake. As mathematical and absolute certainty is seldom to be attained in human affairs, reason and public utility both require that judges (in fact all mankind) in forming their opinion of the truth of facts should be governed and regulated by the superior number of probabilities on one side or the other.”
The very Erudite Jurist Oputa JSC (as he then was) in the same case of Christopher Okosi & Anor V. State (supra) chip up a few words as follows:
“I must say that identification of an accused person is not all magical if in the whole evidence, the accused is positively identified.”
On this issue of identification of the accused person, see also: Henry Ohi v. The State (1993) 4 NWLR (Pt.290) 675 at 680; Godspower Asakitikpi v. The State (1993) 5 NWLR (Pt.296) 641 at 655; Osuagwu V. State (2009) 1 NWLR (Pt.1123) 527 at 530; Sunday Ndidi v. The State (2007) All FWLR (pt. 381) 1617.

In the instant appeal, the evidence of the identification of Appellant by the PW1 is quite strong and positive, considering the level of interaction between the two, before and during the time of the commission of the crime. This court is in agreement with the trial court, with respect to its finding on the identification of the Appellant, as the person who robbed the PW1 on the 23/12/2005. This court will not disturb that finding.

On the second leg (2) which is the defence of alibi raised by the Appellant. The learned counsel to the Appellant at page 11 of their brief of argument paragraph 4.06 stated that the Appellant in his statement to the police which he made soon after he was arrested which statement can be found at page 33 and 34 of the Record of Appeal stated that on the day of the incidence, he took one man from Eguare Irrua to Opoje and that as they were going they saw a “Ghana Must Go Bag” containing assorted clothes, money and some food items along the Road. He also stated that the man asked to stop and check the bag and that the man told his son to bring a wheel barrow to carry the bag and that he knew the man and the particular house where the things were taken. From all indication, it appears from the statements of the Appellant to the police that an issue of alibi was raised by the Appellant as to where he was on the day of the incident. The police in their evidence at the trial court did not testify that they investigated the statement with respect to whether the Appellant was with the said man on the day of the incident.

This court has perused through the said statement of the Appellant at pages 33 and 34 of the records. Precisely at page 34 lines 9 & 10, the Appellant stated as follows:
“On the 23rd of December, 2006 at about 7:30pm, I carried one man from Eguare – Irrua to Opoje…”

The alibi raised by the Appellant, he voluntarily stated in his statement that the incident occurred at about 7:30 pm. The incident reported by the PW1 was said to have occurred at about 9:00pm. In view of the glaring difference on the time of occurrence of the two events, would it necessitate the investigation of the police on the alibi of the Appellant? Learned counsel to the Respondent answered that, it does require police investigation. At page 11 of their brief of argument, the 2nd paragraph he stated that in both statements of the Appellant Exhibits P-1 and P-2, Appellant did not state that he was at home at 9pm on 23/12/06 which is the time and date the crime was committed.

Appellant in his evidence in chief on the 11th of January, 2010 at page 48 lines 16 – 19 of the records of appeal stated thus:
“On the 23/12/2006, I went to work as a bike rider in the morning on that day. I closed from work at 6pm on that day. I know PW1 who is also complainant in this case. On the 23/12/2006 at 9pm, I was in my house.”

Learned counsel to the Respondent maintained the above testimony of the Appellant during trial is a very poor attempt at raising an alibi and was not sufficient to shift any burden to the police to investigate same. The Appellant attempted raising the alibi during trial rather than at the earliest opportunity and so failed to give the police the opportunity to investigate same, raising it during trial was too late, and was an afterthought. He failed to give any particulars of where he was, and the names or particulars of the person(s) he was with when the crime was committed.

The word “alibi” in its original Latin con as an adverb, means “elsewhere”. See: Gachi V. The State (1965) NMLR 334; Nwabueze V. The State (1988) 4 NWLR (Pt.86) 16.

If the defence of alibi succeeds, the accused is completely and totally exonerated from criminal responsibility as he lacks the mens rea and the actus reus for the commission of the offence. This is because if an offence was alleged to have been committed by the accused in a particular place, which is the scene of crime, and there is evidence that he was somewhere else at the material time, and not in the scene of crime, he cannot be found guilty of committing the alleged offence.

The law is already trite that the defence of alibi is available to an accused person who normally raises it early as a suspect or later as an accused person in police interrogation room. The Supreme Court in the case of Ukwunnenyi v. The State (1989) 4 NWLR (Pt.114) 131 stated as follows:
“The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial. When the defence is raised by the accused, the police have a duty to investigate in order to know the veracity or authenticity of the defence.”
I find this Supreme Court’s decision above, on all fours, with the present appeal. The Appellant raised his alibi only during trial, which does not afford to him a good defence. By so doing at the stage of trial, he deprived the police their duty to investigate the alibi raised. On raising the defence at an early stage of interrogation of an accused person, see: Friday Aiguobarueghian and Anor V. The State 17 NSCQR 442 at pp 487 – 488; Christopher Okosi & Anor V. The State (1989) 1 NWLR (Pt.100) 642 at 666; Attah & Anor v. The State (2010) vol 138 LRCN 1 at 8; Ebenechi V. State (2009) 2 WRN 1 at 4 – 5; Ibrahim V. State (2003) 3 ACLR 474 at 478; Ogoola V. The State (1991) 2 NWLR (Pt.175) 509; The State v. Salami (1988) 2 NWLR (Pt.85) 670.

On the whole therefore, having raised the defence of alibi by the Appellant at the time he did at trial stage, which does not constitute a good defence, it cannot be made available. I do agree with the submission of the Respondent in their brief of argument that raising the defence of alibi at that stage was simply an act of an afterthought.
In the final analysis, this court has resolved the sole issue for determination in this appeal against the Appellant and in favour of the Respondent. The appeal is unmeritorious and it is hereby dismissed.
The Judgment of Hon. Justice J. I. Acha of the High Court of Justice Edo State of Nigeria, Benin Judicial Division in Suit No.B/HCU/3/2008 delivered on the 2nd of June, 2010 is hereby affirmed by this court.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s conclusion that the appeal is unmeritorious and dismissing the same.
Accordingly, I too, affirm the judgment delivered on 2/6/2010 by the lower court in Suit No. B/HCU/3C/2008.

TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have perused before now, the draft of the judgment, just rendered by my learned brother, SIDI BAGE, JCA.
I am in total agreement with his reasoning and conclusion to the effect that this appeal merits nothing more than a dismissal. I, too dismiss it, accordingly.

Appearances

Emmanuel Achukwu with Jide OkonguFor Appellant

AND

Tessy Eghe-Abe CSC EdsmojFor Respondent