EMMANUEL EGWEMI V. THE STATE (2010)

EMMANUEL EGWEMI V. THE STATE

(2010)LCN/4006(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of January, 2010

CA/A/179/C/2005

RATIO

ACQUITTAL: CIRCUMSTANCES UNDER WHICH DISCREPANCIES OR CONTRADICTIONS IN THE PROSECUTION’S CASE WOULD ENTITLE AN ACCUSED PERSON TO AN ACQUITTAL

It is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. Rather, it is only when the discrepancies or contradictions are on material point or points in the prosecution’s case, which creates some doubt that the accused person is entitled to an acquittal because in such circumstances it is not possible to hold that the evidence for the prosecution is overwhelming. Agbo v. State (2006) 6 NWLR (pt. 977) 545 per Muktar JSC; Ekanem v. Queen (1960) SCNLR 42; Nasamu v. State (1979) 6-9 SC 153; Kalu v. State (1988) 4 NWLR (pt. 90) 503; Ogoala v. State (1991) 2 NWLR (pt. 175) 509; Sele v. State (1993) 1 NWLR (269) 276; Wankey v. State (1993) 5 NWLR (pt. 295) 542; Opayemi v. State (1985) 2 NWLR (pt. 5) 101. PER MARY U. PETER-ODILI J.C.A

CONTRADITION IN THE EVIDENCE OF THE PROSECUTION : CIRCUMSTANCES UNDER WHICH CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION WILL RESULT IN THE UPSETTING OF A TRIAL COURT’S JUDGMENT

It is not every contradiction that will result in the upsetting of a trial Court’s judgment. For contradiction to upset a judgment, it must be of such magnitude as to warrant interference with the conclusion reached by the trial judge. A minor contradiction in the evidence of the prosecution which cannot vitiate or occasion a miscarriage of justice would not affect the substance of the prosecution’s case. Hausa v. State (1994) 6 NWLR (pt. 350) 281 at 307; Oke v. Inspector General of Police 14 WACA 645; Oruwari v. State (1985) 3 NWLR (pt. 13) 486; Ejeka V. State (2003) 4 SCNJ 16. Discrepancies or contradictions in the evidence of a witness or witnesses may be said to be material where they go to an issue of fact which must be determined before a proper verdict can be arrived at in the case or where in the circumstances in which they occurred they were such as to cast a doubt on the credibility of

DUTY OF COURT: WHETHER IT IS DUTY OF THE TRIAL COURT TO DETERMINE WHETHER OR NOT THE CONTRADICTIONS IN THE EVIDENCE OF A WITNESS AFFECTS THE SUBSTANCE OF THE PROSECUTION’S CASE

It is to be stated again and again that whether contradictions in the evidence of a witness affects the quality of the evidence of the witness is primarily for the trial court to determine having regard to the rest of the evidence of the witness and the fact or facts in respect of which such contradictory evidence has been given. Igbi v. The State (2000) 2 SCNJ 63. PER MARY U. PETER-ODILI J.C.A

WITNESS STATEMENT: WHAT THE INCONSISTENCY RULE ENTAILS

The inconsistency rule which says that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence in which the court can act was developed in the interest of justice and formulated for the resolution of conflict between the later evidence and previous statement of a witness. Per Galinje JCA in Usufu v. State (2007) 1 NWLR (pt. 1020) 94 at 116; R v. Ukpong (1961) 1 SCNLR 53. The inconsistency rule governs the evidence of a witness who has made a previous statement, sworn or unsworn, which is contradictory with should be regarded as unreliable. Usufu v. State (2007) 1 NWLR (pt. 1020) 94 at 116; Egbonome v. State (1993) 7 NWLR (pt. 306) 383. PER MARY U. PETER-ODILI J.C.A

Before Their Lordships

HON. JUSTICE RABIU DANLAMI MUHAMMADJustice of The Court of Appeal of Nigeria

HON. JUSTICE MARY U. PETER-ODILIJustice of The Court of Appeal of Nigeria

HON. JUSTICE AYOBODE O. LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

Between

EMMANUEL EGWEMIAppellant(s)

AND

THE STATERespondent(s)

MARY U. PETER-ODILI J.C.A (Delivering the Leading Judgment): This is an Appeal by the Appellant against the judgment of Honourable Justice S. T. Hussaini, sitting at the High Court of Justice, Anyigba, Kogi State delivered on 16th December, 2004, convicting and sentencing the Appellant to death by hanging for the following offences, viz:
(a) Criminal Conspiracy.
(b) Culpable homicide punishable with death and
(c) Mischief.

FACTS:
The Appellant was originally arraigned at the High Court of Justice, Idah, Kogi State. On the order of the Honourable chief Judge of Kogi State, the case was transferred to the High court of Justice, Anyigba, Kogi State, where the matter commenced de novo. The appellant was arraigned at the High Court Anyigba, Kogi State, on 16th July, 2003 and charged with the offences of criminal conspiracy, culpable homicide punishable with death, voluntarily causing hurt and mischief contrary to Sections 97, 221, 245 and 327 of the Penal code Law Cap 89 Laws of Northern Nigeria, 1963 applicable to Kogi State. The appellant entered a plea of “not guilty” to all the charges, whereupon the prosecution called seven (7) witnesses in proof of its case, with the appellant testifying on his own behalf.
The incident which led to the Appellant’s conviction and sentence was alleged to have taken place at Okumaji in Ibaji Local Government Area of Kogi State on 29/11/98. The particulars of the offence as was alleged by the prosecution are that the Appellant along with other person named in the charge sheet, all of who were armed with dangerous weapons viz: guns, knives and machetes etc, invaded the home of one Alhaji Umaru Bamaiyi (the deceased) at Okumaji on 29/11/98, beat him up, caused the destruction of his properties as well as those of his wife and children beat up the deceased and his wife, abducted him and eventually killed him by causing him to drown at a river after which the deceased was pulled out of the river dead and the Appellant used his “knife” to cut off the head of the deceased.

It was alleged by the prosecution that the headless body of Alhaji Umaru Bamaiyi was thrown into the river while the appellant made away with the head of the deceased. It was further alleged that the deceased’s wife, Mallam Ramatu Bamaiyi was later hospitalized at the General Hospital, following the beating she received from these invaders.
The record of proceedings reveals that the deceased was the caretaker of a parcel of land allegedly belonging to one chief John Okolo, which parcel of land had been the subject matter of a dispute between Chief John Okolo and the Itoduma people. Equally revealed by the record is the fact that the deceased Alhaji Umaru Bamaiyi was killed not too long after he testified for the said chief John Okoio in the land dispute between him and the Itoduma people.
PW1 – PW3 and PW6 gave eye – witness accounts of the incident which led to the killing of the deceased. While PW1 – PW3 claimed to have witnessed the assault of Alhaji Umaru Bamaiyi and his wife from their respective hiding places, PW6 on the other hand, claimed to have witnessed the murder of Alhaji Umaru Bamaiyi from his own hiding place in the bush.
The prosecution gave evidence that all efforts to recover the headless body of the deceased from the river proved abortive.

The Appellant testified that he was arrested on 20/3/02 at Idah waterside on his way from Lokoja. He raised the defences of alibi and mistaken identity on the ground that he was not at home at the relevant time when the offence was allegedly committed and secondly that his name is Emmanuel Egwemi and not Emmanuel Nnaloka which is the name in the warrant of arrest shown to him.
It was argued on behalf of the Appellant at the Court Below that PW1 – PW3 and PW6 were “tainted” witnesses and that their testimonies were riddled with material contradictions. It was also argued that the identity of the Appellant was not proved beyond reasonable doubt and that his defence of alibi was not impugned by the prosecution. At the conclusion of the trial, the Appellant was found guilty and convicted of three out of the four offences, charged including culpable homicide punishable with death under Section 221 of the Penal Code and sentenced to death by handing.

Being dissatisfied with his conviction and sentence, the Appellant appealed to this court vide his Notice of Appeal dated and filed on 5/1/05 containing eleven Grounds of Appeal.
On the 29/10/09 date of hearing Chief Ikwueto SAN adopted the appellant’s Brief filed on 8/8/06 and a Reply Brief filed on 2/10/08 and deemed filed on 29/10/09. In the Appellant’s Brief were distilled four (4) issues for determination and they are as follows:-
1. Whether the prosecution proved its case beyond reasonable doubt having regard to the material contradictions in the evidence of the prosecution witnesses.
2. Whether PW1, PW2, PW3 and Pw6 were “tainted” witnesses with their own interest to serve.
3. Whether the trial judge was right to hold that the Appellant was sufficiently identified having regard to the evidence of identification before the Court.
4. Whether the defence of alibi put forward by the Appellant was properly rejected by the trial judge.
The Honourable Attorney General, Mr. Abraham for the Respondent adopted the Respondent’s Brief filed on 25/8/08 and deemed filed on 29/8/08.
He formulated four (4) issues for determination viz:-
1. Whether there were material contradictions in the evidence of the prosecution’s case such that the prosecution could not be said to have proved the charges against the Appellant beyond reasonable doubt
2. Whether PW1, PW2, PW3 and PW6 were tainted witnesses with their own interest to serve.
3. Whether the learned trial judge had right to hold that based on the evidence before him, Appellant has been properly and differently identified by the prosecution witnesses.
4. Whether the learned trial judge properly considered and rejected Appellant’s plea of Alibi.
I shall utilise the issues as formulated by the Appellant for ease of reference.

ISSUE No. 1
Whether the prosecution proved its case beyond reasonable doubt having regard to the material contradictions in the evidence of the prosecution witnesses.
Learned counsel for the Appellant submitted that the finding of facts by the learned trial judge that there are no material contradictions in the evidence of the prosecution witnesses is perverse and ought to be set aside by this court. He referred to the evidence of the prosecution witnesses to highlight those contradictions. He cited Cyril Opara v. The State (2006) 9 NWLR (pt 986) 508.
He stated that from all the material contradictions, inconsistencies and improbabilities inherent in and surrounding the evidence of PW6 it would be safe to draw the conclusion that, either the incident did not happen, or if it happened at all, PW6 did not witness the murder of Alhaji Umaru Bamaiyi as alleged by him. That the contradiction in the hiding piace of PW1 and Pw2 is material and not “mere discrepancies” as held by the learned trial judge. He pointed to further contradictions in the evidence of the other prosecution witnesses which had produced reasonable doubt regarding the guilt of the prosecution which should be resolved in favour of the Appellant. He referred to Esop Sampson Edoho v. The State (2004) 5 NWLR (pt. 865) 17 at 51; Obayomi Olalekan v. The State (2001) 18 NWLR (pt. 746) 793 at 717; Patrick Ikemson & ors v. The State (1989) 3 NWLR (pt. 110) 458 at 459; Abeke Onafowokara v. The State (1987) 3 NWLR (pt. 61) 538 at 541.
In response learned counsel for the Respondent, Mr. Abrahams said the word contradiction presupposes or implies that there are two or more conflicting accounts or versions of the same incidents. That contradiction occurs where the witness’ account of an incident is at variance with another witness’ account of the same incident, such that accepting the account of one witness means rejecting the version of the other witness because both accounts are mutually in conflict. He cited Benson Esengbedo v. The State (1998) 1 Ail CRLR 107; Agbo v. The state (2006) 6 NWLR (pt. 977) 545 – 564; Igabele v. The State (2006) 6 NWLR (pt. 975) 100; Sele v. The state (1993) 1 SCNJ 15 at 22 – 23; Ejeka v. The State (2003) 4 SCNJ 161 at 168.
Learned counsel for the Respondent went on to say that the so-called contradictions are not material. He pointed to relevant portions of the Record of proceedings.

It is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. Rather, it is only when the discrepancies or contradictions are on material point or points in the prosecution’s case, which creates some doubt that the accused person is entitled to an acquittal because in such circumstances it is not possible to hold that the evidence for the prosecution is overwhelming.
Agbo v. State (2006) 6 NWLR (pt. 977) 545 per Muktar JSC; Ekanem v. Queen (1960) SCNLR 42; Nasamu v. State (1979) 6-9 SC 153; Kalu v. State (1988) 4 NWLR (pt. 90) 503; Ogoala v. State (1991) 2 NWLR (pt. 175) 509; Sele v. State (1993) 1 NWLR (269) 276; Wankey v. State (1993) 5 NWLR (pt. 295) 542; Opayemi v. State (1985) 2 NWLR (pt. 5) 101.

The inconsistency rule which says that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence in which the court can act was developed in the interest of justice and formulated for the resolution of conflict between the later evidence and previous statement of a witness. Per Galinje JCA in Usufu v. State (2007) 1 NWLR (pt. 1020) 94 at 116; R v. Ukpong (1961) 1 SCNLR 53.
The inconsistency rule governs the evidence of a witness who has made a previous statement, sworn or unsworn, which is contradictory with should be regarded as unreliable. Usufu v. State (2007) 1 NWLR (pt. 1020) 94 at 116; Egbonome v. State (1993) 7 NWLR (pt. 306) 383.

Where in a criminal trial, there are inconsistencies, contradiction or conflicts in the prosecution, case, it is not the function of the trial court to offer the explanation. In such a case it is for the prosecution to proffer the explanation of the circumstances of the contradiction and prove its case beyond reasonable doubt.
For any conflict, contradiction or mix-up in the evidence of the prosecution witnesses to be fatal, to the prosecution’s case, such conflict, contradictions or mix-up must be substantial and fundamental in question before the court. Usufu v. State(2007) 1 NWLR (pt.1020) 94; Namsoh v. State (1993) 5 NWLR (pt. 292) 129.
In answer to the poser, it is not every inconsistency, discrepancy, contradiction that would cause an upset in the proof of a prosecution’s case beyond reasonable doubt.
Furthermore on whether or not there were contradictions in the evidence of the prosecution witnesses enough for the trial court to have jettisoned those pieces of evidence and thereby have the totality of the evidence unusable. The learned trial judge had found that PW1 and PW2 were at variance in their account of the place they went to hide as one called it BUSH and the other called it a FOREST. Clearly this is an area of semantics and cannot be said to be a material difference since in the normal course of grammatical usage persons have been known to ascribe bush to a forest and vice versa. Also as the trial judge found not to be material in the evidence is the differences in the account as to the place of birth of PW1. I am of the same mind as the trial judge in his attitude to these differences which are in my view minor and not sufficient to either render the witnesses unreliable or their evidence of such as would create the doubt that would make it be said that the prosecution failed to prove its case in a criminal trial beyond all reasonable doubt. It is in that light that I find this issue I in favour of the Respondent.

ISSUE NO. 2:
Whether PW1, PW2, PW3 and PW6 were “tainted” witnesses with their own interest to serve.
Learned counsel for the Appellant said PW1, PW2, PW3 and PW6 were tainted witnesses with interests to serve and so the trial judge should have warned himself of the necessity that their respective evidence should be corroborated before relying solely on those pieces of evidence to convict the accused person/appellant. He cited Francis Obidike v. The State (2001) 17 NWLR (pt.743) 601; Akalonu v. The State (2000) 2 NWLR (pt. 643) 165; Abayomi Olalekan v. The State (2001)18 NWLR (pt. 746) 793; Nathaniel Mbenu & anor v. The State (1988) 3 NWLR (pt. 84) 615.
In response, Mr. Abrahams submitted that taking all the circumstances and facts of this case together PW1, PW2, PW3 and PW6 cannot be regarded as tainted witnesses. That the mere fact that PW1 and PW2 are children of the deceased does not make them tainted witness neither the fact of PW3 and PW6 farming for the deceased show them as tainted witnesses. He cited Akalonu v. The State (2002) 14 SCLR 43; Chukwu v. The State (1992) 1 SCNJ 47; Olalekan v. The State (2001) 12 KLR 3401; Ogunlana v. The State (1995) 5 SCNJ 189 at 202.
The Appellant’s grouse in the evidence of PW1, PW2, PW3 and PW6 just because they are relations of the deceased and so categorized as tainted witnesses account for which there should be corroboration, failing which the evidence would be disregarded cannot be supported either by law or in the usual course of human life or the evidence before the court.
It is to be stated without difficulty that although the prosecution needs not call a host of witnesses on the same point in issue and if there is a witness whose evidence will settle it one way or the other, that witness ought to be called even if that witness is a relation. See Usufu v. State (2007) 1
NWLR (pt. 1020) 94 at 118; Omogodo v. State (1981) 5 SC 5; Ereku v. Queen (1959) WNLR 77.
This issue is resolved in favour of the Respondent.

ISSUE NO. 3:
Whether the learned trial judge was right to hold that the Appellant was sufficiently identified having regard to the evidence of identification before the Court.
Mr. Ikwueto of counsel for the Appellant gave details in support of the mistaken identity of the Appellant by the prosecution witnesses especially PW6 and stated that the failure of the prosecution to tender the statement of PW6 to the police brought into operation Section 149 (d) of the Evidence Act to the effect that had that statement been produced and tendered it would not have favoured the prosecution. Learned Senior Advocate further contended that to establish a case of culpable homicide punishable with death under Section 221 of the Penal Code the prosecution must prove the ingredients of the offence beyond reasonable doubt. He referred to Dare Kada v. The State (1991) 8 NWLR (pt. 208) 134; Suie Ahmed v. The State (2001) 18 NWLR (pt. 746) page 622 at 626.
The learned Attorney General of Kogi State in response said the prosecution had shown from evidence that Appellant acted in consent with others at large to destroy property and kill the deceased. That the prosecution proved that appellant was in the party which abducted the deceased on a local stretcher and the evidence of PW6 who was an eye witness, showed that it was appellant himself who beheaded the deceased after drowning him in the River. He cited Okolo Ochemaje v. The State (2007) Unreported supreme court case; Saturday Ndike v. The State (2000) 1 SCNQR 274 at 301; Ahmed (alias Ezea) v. The state (2003) 3 ACLR 146 at 177.

The question of the identification of an accused is an issue of fact for the trial court to make a finding on and in finding that an accused is properly identified by a witness there must be evidence before the court showing what opportunity the witness had to identify the accused as the assailant or the perpetrator of the alleged offence. Olalekan v. State (2001) 18 NWLR (pt. 746) 796 at 739 – 830; Abudu v. State (1985) 1 NWLR (pt. 1) 55; Ajibade v. State (1987) 1 NWLR (pt. 48) 205) Asakirikpi v. State (1973) 5 NWLR (pt. 296) 641.
Where in a criminal case the identity of the accused is in doubt and the prosecution’s case depends solely on the identification of the accused and is weak, caution must be applied in convicting the accused. Olalekan v. State (2001) 18 NWLR (pt. 746) 796; Abudu v. State (1985) 1 NWLR (pt. 1) 55; Ajibade v. State (1987) 1 NWLR (pt. 48) 205; Asakirikpi v. State (1993) 5 NWLR (pt. 296) 641.

Where an identification parade is desirable where mass arrest of suspects was made by the police, its absence is not fatal to the prosecution’s case where some of the suspects are known to the witnesses.
It has to be said that it is not in all cases connected with identification that a witness must before the identification give the name and some physical features of the suspect since each case has to be treated on its own facts, circumstances and merit. Per Wali JSC. Bashaya v. The State (1998) 4 SCMJ 202.
Where the quality of the evidence of identification of the accused in the commission of the offence with which he is charged is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions the accused should be acquitted unless there is other evidence which goes to support the correctness of the identification. Asakirikpi v. State (1993) 5 NWLR (pt. 296) 641 at 655 per Uwais JSC (as he then was).
Whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistakes, the Court must closely examine and receive with caution the evidence alleged before convicting the accused in reliance on the correctness of the identification. Per Ogundare JSC in Eyinsi v. State (2000) 15 NWLR (pt. 691) 555 at 587 – 588.

Identification means a whole series of facts and circumstances from which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, hand writing, palm-prints, voice, identification parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or a combination of two or more of these. Eyisi v. State (2000) 15 NWLR (pt. 691) 555 at 595 – 596; Nwabueze v. State (1988) 4 NWLR (pt. 86) 16; Ozaki v. State (1990) 1 NWLR (pt. 124) 92; Esangbedo v. State (1989) 4 NWLR (pt. 113) 57.
The learned trial judge had in this matter of the identification of the accused/appellant held as follows in evaluation:-
“The testimonies of PW1, PW2, and PW3 are eye-witness accounts of events. Their evidence relate to the incident as it happened in the compound of Umaru Bamaiyi (Deceased) on 29/11/98 at Okumaji They identified the accused person as among the attackers PW6 went into hiding when he heard noise of some people approaching him. He also heard someone among the people crying. He later identified the person crying as Umaru Bamaiyi whose hands he saw tied behind his back. He was in the midst of Itoduma People. This much are in the record of Evidence of PW6. PW1, PW2 and PW3, this witness (PW6) is identified those Itoduma people to include Joseph Uge, David Nwabike, Idogo Inajo, Okolo Acheneje, Umona Ugbaje and Emmanuel Inaloka Egwemi, the accused on trial among others. Therefore I find as a fact that the group of attackers who beat up Umaru Bamaiyi and took him away from his house at Okumaji on 29/11/98 is the same group who led Umaru Bamaiyi to the river side at a place between Otta and Ogotibo villages. The same group pushed Umaru Bamaiyi into the River and held him under water until he was drowned. The accused Emmanuel Egwemi is one of them. He partook in the set that led to the death of their victim – Umaru Bamaiyi”.
It should be appreciated that the degree of perception of events especially in time of danger varies with the individual’s ability, memory and presence of mind. It is here that the observation of a trial judge during the evidence of a witness becomes relevant and should not be disregarded by an Appellate Court.
The learned trial judge had even gone on to say:
“The accused in particular even went a step further.
It was him who sliced the throat of Umaru Bamaiyi to severe the head from the rest of the body. Neither the headless body nor the head itself has been found. The accused made away with the head. There is therefore a nexus between the act of the accused and the death of Umaru Bamaiyi as I find all these facts proven on the authority of Dene Kada v. The State (1991) 11 SCNJ 19”.
“Indeed the findings and conclusions of the learned trial judge are borne out from the evidence of these witnesses PW1; PW2; PW3 and PW6 whose identification and versions of what they saw flowed naturally from the events as narrated and so I see no reason to deviate from the stand of the learned trial judge. Also not impressive is the attempt by the Appellant to say the person to be arrested was Emmanuel Inaloka different from himself Emmanuel Egwemi. There is however enough in evidence and finding of the trial judge upon which it is safe to say Emmanuel Inaloka and Emmanuel Egwemi are one and the same. The two names used together in the past or separately. I rely on Asakirikpi v. State (1993) 5 NWLR (pt. 296) 641 at 658 (SC). I resolve this issue in favour of the Respondent.

ISSUE NO. 4:
Whether the defence of alibi put forward by the Appellant was properly rejected.
Learned Counsel for the Appellant contended that the prosecution failed to disprove the Appellant’s alibi by either producing the original statement of the Appellant, as recorded by PW5 or by impugning the Appellant’s defence of alibi under cross-examination. That the DW1 and Dw2 were not cross-examined on the Appellant’s defence of alibi nor was the alibi investigated by the police. That in rejecting the alibi the trial judge adopted a wrong procedure. He cited Aiguoreghian & anor v. The State (2004) 3 NWLR (pt. 860) 367 at 400; Ebre & ors. V. The State
(2001) 12 NWLR (pt. 728) 617 at 623; Fatai Azeez & 5 ors v. The State (2005) 8 NWLR (pt. 927) 312 at 323.
Mr. Abrahams for the Respondent submitted that the fact that the statement of PW6 was not tendered in evidence did not detract from the finding of the trial judge that Appellant was identified by the witnesses in all 3 locations. That the Appellant had not given full particulars of his whereabouts in Exhibit Yy and his latter day claim that his statement was not fully recorded by PW5 was rightly rejected by the Court below. That in his defence Appellant in Court had said on the 29/11/88 day of incident he was in Bacita and lived along Zaria Road but in the statement of his as to the place he said he was at Jebba at the time of incident therefore providing a conflict between his statement to the police and his evidence in Court.
That the prosecution properly fixed the accused/Appellant at the scene of crime and therefore his alibi was logically destroyed. He referred to Asanya v. The State (1991) 4 SCNJ 1; Bema Meza Bandhanga v. The State (1998) 4 SCNJ 202; Esangbedo v. The State (1989) 7 SCNJ 1; Ukwunenyi v. The State (1989) 7 SCNJ 34.
In reply on points of law the Appellant through Senior Advocate said that where an accused person has raised a defence of alibi, the persussive or ultimate or legal burden remains on the prosecution to establish the guilt of the accused beyond reasonable doubt whereas the evidential burden of eliciting or bringing evidence of his defence of alibi is on the accused. That failure to investigate the alibi casts a doubt upon the probability of the case for the prosecution as to whether it had proved its case beyond reasonable doubt, the benefit of which should be given to the accused. He cited Hausa v. The State (1994) 6 NWLR (pt 350) 281 at 302; Usufu v. The State (2007) 1 NWLR (pt. 1020) 94 at 122; Osaki v. The State (1990) 1 NWLR (pt. 124) 92 at 109; Musa v. The State (1996) 8 NWLR (pt. 468) 610 at 616; Onuchukwu v. The State (1998) 4 NWLR (pt. 547) 576.
While the Appellant through counsel had postured that Appellant’s alibi was not investigated the Respondent had countered that the Appellant as accused or suspect had not supplied the necessary particulars that could have assisted the prosecution in investigating the alibi to confirm or debunk as the case may be.
It is trite law that where an accused person did not raise the defence of alibi before his trial but in his evidence at the trial, the prosecution would not be obliged at that stage to investigate it and would be entitled to rely on the evidence of its witnesses to disprove the alibi. Musa v. State (1996) 8 NWLR (pt. 468) 610 at 615 per Abdullah. JCA (as he then was).
Once alibi has been raised, the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt. The only burden on the accused raising alibi is to adduce some evidence tending to show that he was elsewhere other than at the scene of the crime (which is a matter peculiarly within his knowledge).
Once that is done, it is the duty of the prosecution through the agency of Police investigation to check on the alibi. Gachi v. State (1965) NMLR 333; Adedeji v. State (1971) 1 All NLR 75; Hausa v. State (1994) 6 NWLR (pt. 350) 281 at 302.

Where an eye witness omits to mention at the earliest opportunity the name or names of the accused person or persons seen committing an offence, a court must be careful in accepting his evidence given later and implicating the person or persons charged, unless a satisfactory explanation is given. This is because such delay makes the evidence of identity suspicious and reduces the truth content of the evidence below acceptable and probative level. However, this does not mean that where an eye – witness evidence omits to mention at the earliest opportunity the name or names of persons seen committing the offence the court cannot convict on it. The principle is only to the effect that the court must be careful in accepting such evidence. Ebri v. State (2004) 11 NWLR (pt. 885) 589 at 610 (SC); Abudu v. State (1985) 1 NWLR (pt. 1) 55.
Although there are occasions in which failure to check or investigate alibi may cast doubt on the reliability of the case of the prosecution, where there is positive evidence which cancels the alibi or where the prosecution adduces sufficient and accepted evidence which fixed the accused person at the scene of crime at the material time, the alibi raised is logically demolished or fizzles into thin air and thus doomed. In such a situation, the failure of the prosecution to investigate the alibi would not be fatal. Hausa v. State (1994) 6 NWLR (pt. 350) 281 at 301 – 302 per Onu JSC; Njovens v. State (1973) 5 SC 17; Ntam v. State (1968) NMLR 86; Adio v. State (1968) 6 SC 119; Ozaki v. State (1990) 1 NWLE (pt. 124) Ukwunneyi v. State (1989) 4 NWLR (pt. 114) 131; Umaru v. State (1988) 1 NWLR (pt. 70) 274; Ntam v. State (1968) NMLR 86.

I would like to quote verbatim the statement of the Appellant to the police wherein he was to state his alibi and particulars for a better appreciation of what the correct state of affairs was and if there was a dereliction of duty on the part of the prosecution on this matter of alibi.
“NAME: EMMANUEL EGWEMI
ADDRESS: ITODUMA IBAJI
NATIONALITY/TRIBE: NIGERIAN IGALA
RELIGION: CHRISTAINITY
OCCUPATION: NATIVE DOCTOR
AGE: 28 YEARS
DATE: 25-03-2002
I have decided to make a complaint against you. I am not obliged to say anything unless I wish to do so but whatever I say shall be taken down in writing and may be given in evidence.
Signed. 25/3/2002.
I voluntarily elect to state as follows:-
I am a free born of Ibaji in Ibaji Local Government Area of Kogi State. I attended Itoduma Primary School. I passed out from the School 1985. Throughout my time in the School it is the Emmanuel Egwemi I bear. I am not Emmanuel Nnaloka.
Throughout the month of August, 2001. I was at Jebba. I came back to Itoduma village sometime in the month of December, 2001. I don’t know Umoru Bameyi I have left my village Itoduma for Jebba since the year 1992. I was not in the village throughout the year 1998. I am not aware of the missing of Umaru Bamaiyi. But I was later informed that some people were arrested from Itoduma village by the police in connection with the case of culpable homicide involving one Umaru Bamaiyi. I do not know any- body among the people to have perpetrated such act. (sgd.) 25/3/2002.
Statement Recorded by me.
(Sgd.) 25/3/2002”.
It can be seen in his Statements to the police that Accused/Appellant did not give the kind of details of the alibi which could have demolished the accusation on him of having committed the crimes for which he was charged, convicted and sentenced.

It is settled that the prosecution does not have to investigate every alibi raised by the accused person, however improbable. However, where the story of the accused if believed is capable of providing a defence, there is a duty upon the prosecution to investigate the story.
It is trite law that where there is a duty on the prosecution to investigate an alibi, failure on the part of the prosecution to do so tantamount to an admission of the alibi. Hausa v. State (1994) 6 NWLR (pt. 350) 281 at 302; Yanor v. State (1965) 1 All NLR 193; Ozulonye v. State (1981) 1 NCR 38; Ikono v. State (1973) 5 SC 231.
A defence of alibi by an accused is a combined defence of lack of actus reus and mens rea; that is, that he was not at the scene of the crime and was therefore neither in a position to have committed the offence nor participated in its commission. Ukwunnenyi v. State (1989) 4 NWLR
(pt. 113) 131 at 144.

The primary and general onus of proving the guilt of an accused person in a criminal case is on the prosecution throughout and never shifts however since the defence of alibi is a matter peculiarly within the personal knowledge of the accused person raising it, the burden of leading evidence of the fact is on the accused. The Supreme Court held Ukwunneyi v. State (1989) 4 NWLR (pt. 114) 131 at 144 – 155; Odidika v. State (1977) 2 SC 21; Gachi v. State (1965) NMLR 333.

From all that is available including the evidence of the prosecution witnesses which enabled the learned trial judge in his finding and conclusion that nothing was present to exculpate the Appellant from the offences and that he was even a main offender thus fixing him both at the scene of Crime and all acts relating thereto. In this situation therefore assuming for want of argument the alibi raised was raised early enough and was not investigated the overwhelming evidence which pinned or fixed the accused to every part of the crime properly demolished that defence of alibi.
The defence of alibi cannot be considered in isolation from the evidence of participation in the Crime charged. Whereas in this case the evidence of the prosecution witnesses has fixed the accused person at the scene of crime the alibi raised by him has been effectively demolished. I rely on the cases of Esangbedo v. The State (1989) 7 SCNJ 10 at 22.; Patrick Njovens & ors v. The State (1973) NMLR 76 at 93; Onuchukwu v. The State (1998) 4 SCNJ 36 at 48.
In conclusion I have not seen anything upon which I can disturb the findings, decision, conviction and sentence on the Appellant and so I dismiss this appeal which lacks merit. I uphold the decisions, conviction and sentence of the Court below.

RABIU DANLAMI MUHAMMAD: I agree.

AYOBODE O. LOKULO-SODIPE: I agree.

Appearances

Chief P.I.N. Ikwueto SAN, J.I. Idigo-Nwosu (Mrs.), C.K. Alabi holding brief of Mrs. Dorothy UfotFor Appellant

AND

Joe Abrahams, Attorney-General Kogi State with A. B. Akogu, DPPFor Respondent