ELEGALAM v. STATE (2020)

ELEGALAM v. STATE

(2020)LCN/14043CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 27, 2020

CA/OW/243C/2018

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

CHINEDU ELEGALAM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHAT IS AN ALIBI?

Now, what is an alibi? It is a Latin expression meaning “elsewhere”. The Oxford Advanced Learners Dictionary, New 9th Edition at page 37 defines the word “alibi” inter alia thus:
“Evidence that proves that a person was in another place at the time of a crime and so could not have committed it.”
The Black’s Law Dictionary, Tenth Edition at page 87 defines the word “alibi” thus:
“1. A defence based on the physical impossibility of a defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time.
2. The quality, state, or condition of having been elsewhere when an offence was committed.”
Now, to successfully plead or raise a defence of an alibi by an accused person in a criminal trial, he is duty bound to timeously raise it at the earliest stage especially during investigation to enable Police check on its veracity. See EGBOMA VS. STATE (2013) LPELR – 21358 (CA) PAGES 74 – 79 PARA A. The defence must be raised with full particulars, stating the exact place he was, the exact time he was there, the person or persons with whom he was or who saw him there. See CHRISTOPHER OKOSI VS STATE (1989) ALL NWLR 170. The accused person is in law saddled with responsibility to adduce evidence in proof of the defence of alibi as it is within his peculiar knowledge. See AKPAN VS. THE STATE (1991) 5 SCNJ 1 or (1991) SC 1. PER ANDENYANGTSO, J.C.A.

REQUIREMENTS A PLEA OF ALIBI MUST SATISFY TO QUALIFY FOR POLICE INVESTIGATION

It is trite that a plea of alibi must satisfy certain requirements for it to qualify for police investigation which are:
(a) The specific place/places where the accused was.
(b) The people in whose company he was.
(c) What, if any, transpired at the said time and place. See EBRE VS. STATE (2001) 12 NWLR (PT. 728) 617 AT 636 PARA C – G.
It is however noted that requirements (a) and (b) are mandatory while (c) is optional – see NSOFOR VS. STATE (2002) 10 NWLR (PT. 775) 274 AT 294 – 295. See also EZEAMA VS STATE (2014) LPELR – 22504 (CA) PAGE 33 PARA A – F.
It is also trite that there is nothing esoteric or extra-ordinary about a plea of alibi. Where same is raised and the prosecution is able to adduce sufficient and accepted evidence (as in this case) to fix the accused at the scene of crime at the material time, surely the alibi is thereby logically and physically demolished. See EKANEM VS. STATE (2012) LPELR – 19711 (CA) PAGES 17 – 18 PARA C – D.; NJOVENS & ORS VS. STATE (1973) NWLR 76. PER ANDENYANGTSO, J.C.A.

BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

It is trite that in criminal proceedings, or trials, the prosecution is duty bound to prove the guilt of the accused beyond reasonable doubt. See AGBANIMU VS. FRN (2018) LPELR – 43924 (CA).
The principle or requirement of proof beyond reasonable doubt is constitutionally guaranteed based on presumption of innocence. See SECTION 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therefore it is trite and settled that proof beyond reasonable doubt stems out of compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption constitutionally guaranteed, the evidence of the prosecution must be proof beyond reasonable doubt, not proof beyond the shadow of any doubt, that the accused is guilty of the offence charged. Why it has to be so is that absolute certainty is impossible in any human adventure or phenomenon, including the administration of criminal justice. In this wise, proof beyond reasonable doubt means just what it says, that is to say, it admits of a high degree of cogency which is consistent with an equally high degree of probability, but excluding admission of plausible and fanciful possibilities. Otherwise the law would fail to protect the community if it admits fanciful possibilities to deflect the course of justice. Therefore, if the evidence is so strong 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 proved beyond reasonable doubt. See BAKARE VS. THE STATE (1987) 3 SC 1; MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 373.

Now for the sake of emphasis, I repeat that the phrase, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. See AGBANIMU VS. FRN (2018) SUPRA.
In discharging this evidential burden, the prosecution is not bound to call a community of witnesses but it must call material or vital witnesses that would enable it prove its case. See ASARIYU VS. STATE (1987) LPELR – 575 (SC); STATE VS OLATUNJI (2003) 2 – 3 S.C. 85. PER ANDENYANGTSO, J.C.A.

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): On the 3rd day of August, 2017, Hon. Justice A. U. Kalu, J, presiding over the Isuikwuato Judicial Division of the Abia State High Court, gave judgment in which he convicted and sentenced the Appellant, Chinedu Elegalam and one other, to death for the offence of Kidnapping under Section 3(a) of the Abia State Prohibition of Terrorism, Kidnapping, Hostage taking, etc., Law No. 10 of 2009.

Piqued by this decision, the Appellant who was the 2nd Accused at the Lower Court has appealed to this Court vide a Notice of Appeal containing 9 grounds of Appeal dated 30/10/17 and filed 31/10/17 but deemed properly filed and served on 3rd October, 2018. (See pages 58 – 62 of the Record) which original record of appeal was transmitted to this Court on 1/6/18, while the supplementary Record was transmitted on 11/6/19.

Before I continue, I think it is appropriate to comment on the Notice of Appeal filed in respect of Ifeanyi Abanobi, the 1st accused in the proceeding in the Court below, at pages 53 – 57 of the main Record of Appeal. Since there is no separate appeal

filed with a distinct and independent appeal number given in respect of Ifeanyi Abanobi, I take the view that no appeal has been filed in this respect. The Notice of Appeal on pages 53 – 57 is incompetent and is hereby struck out. The only appeal subsisting therefore is that of Chinedu Elegalam against the State with Appeal No. CA/OW/243C/18.

Now, the nine grounds of the appeal without their particulars are as follows:
“GROUND ONE:
The Learned Judge erred in law when after making a finding that the case against the 2nd accused person is challenging, he turned round to convict the 2nd accused person of the offence of kidnapping.
GROUND TWO:
The Learned Trial Judge erred in law when he held that the evidence of the 2nd accused person is certainly contrary to the statement he made to the police on 17/11/2014 which was tendered as Exhibit C.
GROUND THREE:
The Learned Trial Judge erred in law when after making a finding that the testimony of the vigilante members who initially apprehended the 2nd accused person to give the Court firsthand account of how the 2nd accused person was arrested is vital, he turned around to

convict the 2nd accused person of the offence of kidnapping.
GROUND FOUR:
The Learned Trial Judge erred in law when he held that the 2nd accused person did not give the Police further and fuller particulars to enable the Police investigate whether his story was true or false.
GROUND FIVE:
The Learned Trial Judge erred in law when he convicted the 2nd accused person of the offence of kidnapping because the 2nd accused was seen in Ikwuano hours after some kidnappers escaped.
GROUND SIX:
The Learned Trial Judge erred in law when he said, “I am of strong view that it accords with reason to believe that the only explanation for the 2nd accused person around the area where a few hours earlier, three men had run away from the vehicle carrying Madam Lydia Acho was that he was one of the men who run away from the vehicle as a result of police hot pursuit.”
GROUND SEVEN:
The Learned Trial Judge erred in law when he held that the prosecution has proved beyond reasonable doubt that the 2nd accused person was one of the gang of kidnappers who kidnapped Madam Lydia Acho.
GROUND EIGHT:
The Learned Trial Judge

erred in law when he convicted the 2nd accused person of the offence of kidnapping notwithstanding that the prosecution failed to prove the charge against the 2nd accused person beyond reasonable doubt.
GROUND NINE:
The Learned Trial Judge erred in law when he held that he was convinced beyond reasonable doubt that the 2nd accused person kidnapped and took Madam Lydia Acho hostage for the purposes of payment of ransome and that the defence put up by the 2nd accused person is devoid of any truth.”

From the nine grounds set out above, the Appellant has distilled 4 issues in his Appellants’ Brief of Argument settled by C.N. Nwokorie filed on 16/11/18, adopted by Counsel on 29/1/2020 when the appeal was heard, which the Learned Counsel for the Appellant argued thus:
“ISSUE NO 1
Whether the Learned Trial Judge was right when after making a finding that the case against the 2nd accused person (Appellant) is challenging, he turned around to convict him. (Distilled from ground1).”

Learned Counsel quoted the opening remarks by the Trial Judge in respect of the Appellant’s involvement in the crime that has

generated this appeal at page 79 of the Record thus:
“Let me now deal with the case of the 2nd accused person. His case is a little challenging.”

Relying on UDOSEN VS. STATE (2007) 4 NWLR (PT. 1023) 125 AT 161, Counsel submitted that the import of the finding was that there was doubt in the mind of the Learned Trial Judge as to whether or not the accused (Appellant) committed the alleged offence. Counsel then contended that faced with that mindset, and coupled with the poor quality of the evidence produced by the prosecution, the trial Judge ought to have resolved the doubt in favour of the Appellant, rather than convicting him on mere allegation that he was found or seen at Ikwuano some hours after the said kidnappers ran into the bush; that the Learned Trial Judge did not consider whether the prosecution adduced sufficient evidence in proof of the case against the Accused/Appellant but rather considered the story of the accused person in defence of the charge; that since the burden of proof in criminal trial lies on the prosecution to prove its case beyond reasonable doubt, the Learned Trial Judge ought to consider the evidence of the

prosecution in determining the guilt of the accused and not shift the burden of proof on the accused; that the only irresistible conclusion that would have been made by the Trial Judge in the circumstance of this case, would have been to resolve the doubt in favour of the Accused/Appellant. He relied on STATE VS. DANJUMA (1997) 5 SCNJ 126 AT 136 and urged us to resolve this issue in favour of the Appellant.

ISSUES 2 AND 3
“Whether the learned trial judge was right when after making a finding that the testimony of the members of the vigilante who initially apprehended the accused person to give the Court first-hand information on how he was arrested is vital, he turned around to convict him (distilled from ground 3).”
“Whether the learned trial judge was right when he held that the appellant did not give police further and fuller particulars to investigate his story and therefore convicted the accused because he was seen around the area few hours after some kidnappers escaped. (Distilled from grounds 4, 5 and 6).”

Learned Appellant’s Counsel argued issues 2 and 3 together because they are related. Learned

Counsel after reviewing/referring to the evidence of PW4, in respect of the fact that it was the vigilante members who arrested and brought the Appellant to the Police Station (page 100 lines 20 – 30 of the Record) and citing a portion of the judgment at page 80 of the Record, conceded that the prosecution has the discretion to call any number of witnesses to prove its case, however he submitted that the failure to call a very material witness will affect the prosecution’s case and create doubt in the mind of the Court, relying on OSUAGWU VS. THE STATE (2016) 16 NWLR (PT. 1537) 31 AT 62 – 63. He further submitted that the evidence of the said vigilante members as rightly held by the Learned Trial Judge is very vital and yet the Learned Trial Judge convicted the Appellant without such vital evidence; that the failure by the prosecution to call such vital evidence is fatal to its case, once again relying on OSUAGWU VS. THE STATE (SUPRA) AT PAGE 70, that the Learned Trial Judge by this holding has shifted the burden of proof on the Appellant, referring to the portion of the Judgment on page 81 of the Record. He again submitted that since the

prosecution has failed to call members of the vigilante to testify, the Learned Trial Court ought to have accepted the version of the Appellant’s story on how he was arrested, as unchallenged, relying on UWAEKWEGHINYA VS. STATE (2005) 23 NWLR 1 AT 27.

DEFENCE OF ALIBI
Learned Appellant’s Counsel stated that the Appellant supplied information to the Police to prove his alibi in both his statement to the Police and in his evidence in the Court. Counsel recapped the statement of the Appellant to the effect that he was a motor conductor to one Senator who asked him to go and buy spare parts to fix their truck which broke down. He then referred to and quoted the portion of the judgment of the Lower Court on page 80 of the Record and several portions of the evidence of the Appellant including Exhibit C and then submitted that the judgment was perverse as decided in MOHAMMED VS. STATE (2014) 12 NWLR (PT. 1421) 387 AT 409.

Learned Counsel referred to the evidence of PW3 and PW4 and submitted that the Police did not investigate the alibi of the Appellant, which caused a miscarriage of justice, citing WISDOM VS. STATE (2017) 14 NWLR (PT. 1586)

446 AT 573 in support, and that the trial Judge shifted the onus of proving the guilt of the Appellant on him. We were then urged to resolve issues 2 and 3 in favour of the Appellant.

ISSUE 4
“Whether the Learned Trial Judge rightly held that the prosecution proved the offence against the Accused/Appellant beyond reasonable doubt (distilled from grounds 2, 7, 8 and 9).”
Appellant’s Learned Counsel submitted on this issue that it is the law that the burden of proof is on the prosecution to prove the offence against the Accused/Appellant beyond reasonable doubt. He then adopted his argument proffered in issues 1, 2 and 3 as part of the argument in issue 4, and submitted that there are a lot of serious contradictions which have created doubts in the prosecution’s case which doubts ought to have been resolved in favour of the Appellant. Counsel referred to the evidence of the victim of the crime Mrs. Lydia Acho in her statement to the Police tendered as Exhibit D at page 97 of the Record, and argued that the prosecutor deliberately shielded the victim of the alleged crime because her testimony would be favourable to the

Appellant. He submitted that the evidence of PW2 who said she saw the shorter marauder who turned out to be the Appellant was an afterthought as the whole incidence took place at night and that it was impossible for PW2 to have seen the face of the Appellant who allegedly flashed the torch light at her face.

Counsel emphasized that the case of the prosecution having been full of contradictions should be disregarded and a verdict of acquittal and discharge entered for the Appellant because:
“(1) The Trial Court agreed that the case against the Appellant is challenging and therefore doubtful.
(2) The Alibi pleaded by the Appellant was not investigated.
(3) There is no credible evidence linking the accused person to the offence.
(4) No identification parade was conducted.
(5) The prosecution failed to prove the offence against the Appellant beyond reasonable doubt.”

In the Respondent’s Brief of Argument settled by Kalu Kalu Udeochu Esq, filed on 15/2/19 but deemed properly filed and served on 21/2/2019 and adopted on 29th, January 2020, when this appeal was heard, Learned Counsel formulated two issues for

determination of this appeal which he argued as follows:
“(1) Whether in the light of the evidence adduced in this case, there was any form of legal and verifiable alibi raised by the Appellant and if the answer is in the affirmative whether such alibi was investigable but not investigated by the Police.”

Learned Counsel referred to the defence of alibi raised by the Appellant at his trial and the submissions by his Counsel before us and the cases of MOHAMMED VS. THE STATE (2014) 12 NWLR (PT. 1421) 387 and WISDOM VS. STATE (2017) 14 NWLR (PT. 1586) 448 cited and relied upon by the Appellant, and submitted that the plea of alibi is the plea that at the time of the commission of the crime the accused was elsewhere and not at the scene of crime, referring to ADEBAYO VS. THE STATE (2014) 12 NWLR (PT. 1422) 613; MOHAMMED VS. STATE (SUPRA) and IBRAHIM VS. THE STATE (2014) 3 NWLR (PT. 1394) 305. Learned Counsel referred to the statement of the Appellant made to the Police tendered and admitted as Exhibit “C” (pages 40 – 43 of the Record) and submitted that the exhibit did not satify the legal requirements of an alibi as

enunciated by the Supreme Court in the case of MOHAMMED VS THE STATE (SUPRA), as the particulars given by the Appellant were not verifiable, referring also to OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109) 57; (2008) LPELR – 2198 (SC); ALIYU VS. STATE (2013) LPELR – 20748; NDUKWE VS. STATE (2009) 7 NWLR (PT. 1139) 43; ODIDIKA VS. THE STATE (1977) 2 SC 21. Learned Counsel further submitted that the evidence adduced before the trial Court especially that of PW2 is such as has dispelled the defence of alibi set up by the Appellant. Learned Counsel urged us to resolve this issue against the Appellant.

“(2) Whether the Prosecution proved the sole charge of kidnapping against the Appellant beyond reasonable doubt to justify his conviction and sentence on the charge by the trial Court.”

Learned Counsel referred to the statement of the Trial Judge at page 79 of the Record upon which the Appellant’s Counsel heavily relied to submit that there was doubt in the mind of the trial Court, and submitted that the statement per se did not amount to any finding of fact by the trial Court, other than a mere opening remark made by the

trial Court before commencing the evaluation of the evidence and making its findings thereon. Learned Counsel then submitted that even though in criminal trials generally, the burden of proof lies on the prosecution to prove the guilt of the accused beyond reasonable doubt, as charged, Learned Counsel, as back up, referred to the evidence of PW2 and the findings of the trial Court at page 18 of the Record and urged us to hold that the prosecution had established the guilt of the Appellant beyond reasonable doubt.

Referring to the submissions of the Appellant’s Counsel in respect of contradictions in the case of the prosecution, Learned Counsel submitted that there were no contradictions capable of creating doubts in the mind of the trial Court and that the failure of the prosecution to call Madam Lydia Acho did not render Exhibit “D” worthless, and further that the Appellant completely misconceived` the testimony of PW2 which was clear as to the use of flash lights by the accused persons including the Appellant.

In respect of identification parade, Learned Counsel submitted that PW2 clearly testified to the fact that she identified

the Appellant as one of the marauders who broke into and carried away Madam Lydia Acho and there was no any contradiction in the evidence of the prosecution. He referred to OSUNG VS. STATE (2012) 18 NWLR (PT. 1332) 258; NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1247) 170 and AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619 and a portion of the judgment of the lower Court at page 57 of the Record and submitted that the prosecution had proved its case against the Appellant beyond reasonable doubt on the grounds that:
“1. The Appellant was properly charged before the High Court of Abia State Isuikwuato Judicial Division for an offence known to law and in the manner prescribed by the relevant statutes and rules.
2. The plea or defence of alibi raised by the Appellant in his desire to escape justice cannot avail him in the light of the facts and circumstance of this case.
3. The trial Court was right, upon due evaluation of all (sic) the evidence before him, to hold that the prosecution proved the guilt of the Appellant beyond reasonable doubt as the decision was borne out of the findings of the Court to that effect.

Learned Counsel then concluded by urging us to uphold and affirm the judgment of the High Court of Abia State, Isuikwuato Judicial Division, convicting the Appellant for the offence of “obtaining by false pretence” (sic) and dismiss this appeal in its entirety for lacking in merit.

RESOLUTION
In resolving the issues formulated by both sides, I find it expedient to adopt the issues formulated by the Respondent. This is because going through the grounds of appeal and the issues distilled therefrom, it is clear that the issues centered on the plea or defence of alibi and non-proof of the ingredients of the offence with which the Appellant was charged by the prosecution beyond reasonable doubt. I shall and hereby demonstrate thus: Grounds 4, 5, 6 and 9 of the appeal centered on the defence of alibi from which issue 1 of the Respondent was distilled, which itself encompasses issues 3 and 4 of the Appellant, while grounds 1, 2, 3, 7 and 8 centered on the inability or failure of the prosecution to prove the guilt of the Appellant beyond reasonable doubt as required by law, from which issue 2 of the Respondent was distilled which itself also encompasses issues 1

and 2 of the Appellant. Therefore it is clear that issues 1 and 2 of the Respondent have encapsulated all the issues formulated by the Appellant. Hence I earlier indicated that I shall determine this appeal based on the issues formulated by the Respondent thus:
ISSUE ONE
“Whether in the light of the evidence adduced in this case, there was any form of legal and verifiable alibi raised by the Appellant and if the answer is in the affirmative whether such alibi was investigable but not investigated by the Police.”

I have already summed up the submissions of Learned Counsel earlier in this judgment and I need not repeat same. Now, what is an alibi? It is a Latin expression meaning “elsewhere”. The Oxford Advanced Learners Dictionary, New 9th Edition at page 37 defines the word “alibi” inter alia thus:
“Evidence that proves that a person was in another place at the time of a crime and so could not have committed it.”
The Black’s Law Dictionary, Tenth Edition at page 87 defines the word “alibi” thus:
“1. A defence based on the physical impossibility of a

defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time.
2. The quality, state, or condition of having been elsewhere when an offence was committed.”
Now, to successfully plead or raise a defence of an alibi by an accused person in a criminal trial, he is duty bound to timeously raise it at the earliest stage especially during investigation to enable Police check on its veracity. See EGBOMA VS. STATE (2013) LPELR – 21358 (CA) PAGES 74 – 79 PARA A. The defence must be raised with full particulars, stating the exact place he was, the exact time he was there, the person or persons with whom he was or who saw him there. See CHRISTOPHER OKOSI VS STATE (1989) ALL NWLR 170. The accused person is in law saddled with responsibility to adduce evidence in proof of the defence of alibi as it is within his peculiar knowledge. See AKPAN VS. THE STATE (1991) 5 SCNJ 1 or (1991) SC 1.

In the instant case, the Appellant did in fact raise the defence of alibi early in his statement to the Police, tendered in the proceeding as Exhibit “C”, in which the Appellant stated that

on 26/10/2014, the day of the commission of the offence, he was with one “Senator” a tanker lorry driver who had sent him to Umuahia to buy bearings and grease to fix their broken down vehicle along the way to Calabar to lift Kerosine. He stated that he could not get the person from whom to buy the parts and on his way back, he was arrested by some people who he thought were fixing the road which had gone into disrepair.

Learned Appellant’s Counsel had submitted that the alibi of the Appellant was not investigated and that the trial Court wrongly convicted the Appellant without considering the defence of alibi. The Learned trial Judge in convicting the Appellant, considered his evidence as against the evidence adduced by the prosecution especially that of PW2 and came to the conclusion that:
“The prosecution proved beyond reasonable doubt that the 2nd accused person (Appellant herein) was one of the gang of kidnappers who kidnapped Madam Lydia Acho.”

Now, it is in evidence that the PW2 saw the Appellant and one other in the night of 26/10/2014 at the time of the commission of the crime; that the Appellant attempted

to rape her and in the process PW2 tore away the mask with which the Appellant covered his face and after the arrest of the Appellant she was able to identify the Appellant and one other among 12 men at the SCID, Umuahia. She again identified the Appellant in the Court during trial of the case.

The statement of the Appellant in Exhibit “C” on page 80 of the Record of Appeal inter alia runs thus:
“On the 26/10/2014, at about 4 p.m Sunday, I and senator left to Calabar in the tanker truck to load Kerosine. As we drove and passed Ariam Ikwuano and entered Oboroakara L.G.A of Akwa – Ibom State, the tanker truck had bearing problem and could not move again. The driver known as Senator sent me to Ikwuano and invite a truck mechanic who will come and repair the tanker. He equally gave me the sum of N4, 000. 00 to buy new bearings. I went to the mechanical workshop where I (was) directed by Senator, but was told that the mechanic has traveled. His workshop was also closed. I decided to trek back where the tanker was parked. I even passed Police check point with some Police Checking.”

This was the finding of the lower Court

on the evidence of the Appellant in analyzing the same:
“The Prosecution did not oblige the Court with the testimony of any of the vigilante members who initially apprehended the 2nd accused person to give us a first hand account of how the 2nd accused person was arrested. But the exhibit C made by the 2nd accused person himself days after the incident confirms that he never went to Umuahia. Between 26/10/14 till he was arrested 0n 27/10/14 he was at Ikwuano. He claimed that he was at Ikwuano with “Senator” the truck driver but he never gave further and fuller particulars of the said truck driver and how he could be located. He did not give the Police the vehicle particulars of the truck which he was a motor boy to. How on earth could the Police investigate whether his story was true or false? Outside the clearly baseless explanation given by the 2nd Accused person on why he was found around the place where the kidnappers of Madam Lydia Acho ran into the bush, what else would be the reason why he was found around that place and at that early hour of the morning?
The 2nd accused is not an indigene or resident of that place and has

no business being at that place at that time. I am of the strong view that it accords with reason to believe that the only explanation for the 2nd accused person being around the area, where a few hours earlier, three men had run away from the vehicle carrying Madam Lydia Acho was that he was one of the men who ran away from the vehicle as result of Police hot pursuit……
My settled conviction is that the prosecution proved beyond reasonable doubt that the 2nd accused person was one of the gang of kidnappers who kidnapped Madam Lydia Acho. I am convinced beyond doubt that the 2nd accused person along with his partners in crime, upon being accosted by the Police, rammed the vehicle they were transporting Madam Lydia Acho in and ran into the bush. I am convinced beyond all doubt that the 2nd accused person was apprehended when he sauntered out of the bush. In my view the explanation given by the 2nd accused person is cock and bull story……” (Pages 80 – 81 of the Record)

It is important to reproduce a portion of the evidence of PW2 for its relevance to the case of the Appellant. On pages 90 – 92 of the Record

the PW2 stated thus:
“I am Chinonso Onuoha. I live at Ndionu Agba Eluama. I am a house-help. I know Madam Lydia Acho. She is my madam whom I work for as a house help. I recall 26/10/2014 at about 8:30pm of that day we were all in the house sleeping. Madam was also sleeping and while in my room I heard Madam Lydia Acho shouting and asking who was flashing the light. I heard some noise from the door leading to the living room. At a point the people making the noise broke the door and entered the house. There were three (3) men who entered. The people who broke in held me and tied me up with a rope. The marauders asked us where we kept the money Madam Lydia’s son sent her, Madam Lydia told the marauders that she does not know what they were taking about. One of the marauders brought out a gun and showed to us all and Madam Lydia immediately brought out the money she had. When Madam Lydia was bringing out the money I managed to untie myself but I pretended as if the rope was still holding me. One of the marauders started beating me and demanded that I give him my money and telephone handset. I led the marauder to my room. The marauder told me to

lie down on the bed that he wished to have sexual intercourse with me. While this was going on, the other two marauders went out of the house. I got up and removed the hood the marauder used to cover his face. I tore his shirt and the shirt fell off the marauder’s body. I ran into the kitchen with the view to jumping out of the window but the marauder held me by the collar of my dress and his gun fell off to the ground. I picked the gun and threw it away through the window. The marauder slapped me and took me into the room of Madam Lydia. I pretended as if I had lost consciousness and at that point the tallest of the marauders came in and tried to take away Madam Lydia but I stood up and held the said tall marauder. The said marauder brought out a small knife and gave me several lacerations. I fell into the bed. The shorter of marauders stood there and was watching me. He warned me not to shout or else he will bear me up. I pretended I did not hear him and continued shouting. At a point, this marauder left the room. I left the room and jumped from the fence to escape the compound. I jumped into the bush and walked through the bush to the village square

and there I saw the PW1 and some Policemen. I made statement at the station. At the Police station there was a parade of 12 people and I was able to point at those involved in the attack. If I see the two people I will be able to recognize them. They are the two (2) men in the dock.”

In the judgment, when the Learned Trial Judge was reviewing and analyzing the evidence of PW2 he stated thus:
“However, the only eye witness to the incident of kidnapping of Madam Lydia Acho who also testified for the prosecution as the PW2, whose evidence I consider compelling, told (sic) that there were three men who attacked the house where Madam Lydia and the PW2 stayed that night. While narrating her encounter with the gangsters the PW2 said in examination in chief:
“The shorter marauder is the 2nd accused now while the taller one is the 1st accused presently.” (Pages 76 – 77 of the original Record)

It is clear from the record that PW2 had ample opportunity of seeing the Appellant while the attack lasted. She picked him (and 1st accused) out from amongst 12 people on identification parade at the Police station. The evidence of

PW4 at pages 98 – 101 of the supplementary Record is a vivid account of how the Appellant was, shortly (about 10 minutes) after the arrest of the (1st accused).

In my opinion there was enough evidence linking the Appellant to the commission of the offence which has demolished the defence of alibi. It is trite that a plea of alibi must satisfy certain requirements for it to qualify for police investigation which are:
(a) The specific place/places where the accused was.
(b) The people in whose company he was.
(c) What, if any, transpired at the said time and place. See EBRE VS. STATE (2001) 12 NWLR (PT. 728) 617 AT 636 PARA C – G.
It is however noted that requirements (a) and (b) are mandatory while (c) is optional – see NSOFOR VS. STATE (2002) 10 NWLR (PT. 775) 274 AT 294 – 295. See also EZEAMA VS STATE (2014) LPELR – 22504 (CA) PAGE 33 PARA A – F.
It is also trite that there is nothing esoteric or extra-ordinary about a plea of alibi. Where same is raised and the prosecution is able to adduce sufficient and accepted evidence (as in this case) to fix the accused at the scene of crime at the

material time, surely the alibi is thereby logically and physically demolished. See EKANEM VS. STATE (2012) LPELR – 19711 (CA) PAGES 17 – 18 PARA C – D.; NJOVENS & ORS VS. STATE (1973) NWLR 76.
I agree with the submission of the Learned Respondent’s Counsel that the defence of the alibi set up by the Appellant does not aid him as the evidence of PW2 and PW4 has sufficiently demolished the defence of alibi. This issue is therefore resolved against the Appellant and in favour of the Respondent.

ISSUE TWO
“Whether the prosecution proved the sole charge of kidnapping against the Appellant beyond reasonable doubt to justify his conviction and sentence on the charge by the trial Court.”

The Appellant anchored his attack on the statement made by the Learned Trial Judge thus:
“Let me now deal with the case of the 2nd accused person. His case is a little challenging. (page 79 of the Record).
The Appellant’s Counsel picked the word “challenging” which he interpreted to mean “doubt” and the sentence above quoted to be a finding of fact by the Learned Trial Judge.

Now the word “challenging” is defined on page 241 of the Oxford Advanced Learners Dictionary amongst others as:
“I. Difficult in an interesting way that tests your ability: challenging work/ questions/ problems.”
“Doubt” on the other hand is defined in the same dictionary at page 459 as “a feeling of being uncertain about something or not believing something.”
The two words have nothing in common in meaning. Therefore, to claim as has been done in this case by the Appellant, that the Trial Judge had doubt which he expressed by the sentence quoted in the judgment, is far from being correct. Let me for the purpose of this appeal pursue the argument of the Appellant to its logical conclusion that what is contemplated is that the Learned Trial Judge had doubt created in his mind while considering the case of the Appellant. The findings of the trial Court based on the analysis of the facts and evidence viz a viz the law in this case swings to the contrary.
The expression “reasonable doubt” in criminal trial connotes the doubt that prevents a person from being firmly

convinced of a defendant’s guilt, or the belief that there is a real possibility that a Defendant is not guilty.
Now, as earlier stated, the Respondent’s Counsel submitted that the views of the Appellant’s Counsel were wrong as the words were mere opening remarks. I entirely agree with the Respondent that what the Learned Trial Judge stated could not be said to be findings on doubt created in the mind of Court. It is trite that in criminal proceedings, or trials, the prosecution is duty bound to prove the guilt of the accused beyond reasonable doubt. See AGBANIMU VS. FRN (2018) LPELR – 43924 (CA).
The principle or requirement of proof beyond reasonable doubt is constitutionally guaranteed based on presumption of innocence. See SECTION 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therefore it is trite and settled that proof beyond reasonable doubt stems out of compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption constitutionally guaranteed, the evidence of the prosecution must be proof beyond reasonable doubt, not proof

beyond the shadow of any doubt, that the accused is guilty of the offence charged. Why it has to be so is that absolute certainty is impossible in any human adventure or phenomenon, including the administration of criminal justice. In this wise, proof beyond reasonable doubt means just what it says, that is to say, it admits of a high degree of cogency which is consistent with an equally high degree of probability, but excluding admission of plausible and fanciful possibilities. Otherwise the law would fail to protect the community if it admits fanciful possibilities to deflect the course of justice. Therefore, if the evidence is so strong 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 proved beyond reasonable doubt. See BAKARE VS. THE STATE (1987) 3 SC 1; MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 373.

if it is upon the evidence of a single witness. See AGBANIMU VS. FRN (2018) SUPRA.
In discharging this evidential burden, the prosecution is not bound to call a community of witnesses but it must call material or vital witnesses that would enable it prove its case. See ASARIYU VS. STATE (1987) LPELR – 575 (SC); STATE VS OLATUNJI (2003) 2 – 3 S.C. 85.

In the instant case there was ample evidence of PW2 and PW4 and Exhibit ‘D’ upon which the trial Court based its conviction of the Appellant and the 1st Accused. The prosecution is not bound to call the vigilante members who assisted the police arrest the Appellant and the 1st Accused. The facts of this case are clear, that the Appellant in company of the 1st Accused and another at large used the vehicle of the 1st Accused to commit the offence of kidnapping of Madam Lydia Acho and upon being chased by the Police, the accused rammed the vehicle unto a tree and then escaped into the bush, however, not before the 1st accused was given bullet shot by the Police.

Upon a calm consideration of the case, it is clear that the Learned Trial Judge properly evaluated the evidence,

ascribed to it proper probative value and rightly found the Appellant guilty and convicted him as charged. I have no ground to fault the findings of fact made by the Learned Trial Judge. I therefore resolve this issue against the Appellant and in favour of the Respondent.

Having resolved all the issues against the Appellant I hold that this appeal lacks merit and same is hereby dismissed. The judgment of the trial Court is hereby affirmed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

ITA GEORGE MBABA, J.C.A.: I agree with the lead judgment of my lord, Andenyangtso, JCA, that there is no merit in this appeal, and should be dismissed. I too dismiss it.

Appearances:

C.N. Nwokorie, Esq For Appellant(s)

Kalu Kalu Udeouffu, Esq For Respondent(s)