FRANCIS EFEDI & ANOR v. THE STATE (2012)

FRANCIS EFEDI & ANOR v. THE STATE

(2012)LCN/5830(CA)

ISSUES: PARTIES ARE BOUND BY THE ISSUES THEY FORMULATED

ALIBI:WHEN THE DEFENSE OF ALIBI : WHAT IT ENTAILS

A defence of Alibi is set up when a person alleged to have committed an offence says he was in some other place other than the scene of crime at the time the offence was purported to have been committed. In setting up the defence of alibi the accused at the earliest opportunity must give particulars of his alibi. The 1st appellant in this appeal contends that he had set up a defence of alibi.PER RAPHAEL CHIKWE AGBO, J.C.A.

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of July, 2012

CA/B/334C/2008

Before Their Lordships

RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria

Between

1. FRANCIS EFEDI
2. BALA SAIDUAppellant(s)

AND

THE STATERespondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The appellants were arraigned before the High court of Delta State, Owa-Oyibu Division on a two count charge of conspiracy and armed robbery. They were alleged to have on the 1st day of July, 2006 robbed one Christopher Ugbebor of a bicycle, two cutlasses, and fifty oil palm seedlings while armed with guns and cutlasses. The prosecution called 4 witnesses and closed its case. The witnesses were the complainant, two eye witnesses and the investigating police officer. Each of the appellants testified and closed their cases. None called any witnessed. In a considered judgment the trial court convicted the appellants on both counts and sentenced each of them to 10 Years imprisonment.
Not satisfied with this judgment the appellants filed their notices of appeal containing the omnibus ground to wit –
“The judgment of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.”
The appellants later with the leave of this court filed four additional ground of appeal to wit:-
“1. The learned trial judge erred in law to have conviction the appellants/applicants when the prosecution witnesses/victims did not identify the accused persons at the earliest opportunity.
2. The learned trial Judge C. O. Ogisi erred in law to have convicted the 1st appellant when the prosecution did not investigate the alibi raised by him.
3.The learned trial Judge erred in law to have convicted the 1st appellant for the offence of armed robbery.
4. The learned trial Judge erred in law to have convicted the appellant on a defective count in the charge sheet.
The parties exchanged briefs of argument. The appellants in their brief of argument distilled 3 issues for determination to wit:-
(1) Whether failure of the prosecution witnesses who were eye witnesses to identify the appellants in their petition to the police was not fatal to the prosecution’s case.
(2) Whether the trial court was not wrong in convicting the appellants for armed robbery when the facts of the case did not support the offence of armed robbery.
(3) whether the trial court was not wrong in holding that 1st appellant failed to provide the particulars of his defence of alibi.
The respondent on the other hand raised the following issues –
“1(i) whether there was sufficient and credible evidence upon which the learned trial Judge held that the prosecution proved the case of armed robbery against the appellants beyond reasonable doubt.
(ii) whether the prosecution witnesses mentioned the accused/appellant as those who robbed PW1 in their petition to Police.
2. Whether having regard to the defence of alibi raised by the appellants the learned trial Judge was right in law when he held that the prosecution proved its case against the appellants beyond reasonable doubt.”
In his oral argument in court here appellants’ counsel informed the court that appellants’ issue 1 was distilled from ground 3 of the additional grounds of appeal, issue 2 from ground 2 of the additional grounds of appeal and issue 3 from ground 1 of the additional ground of appeal. Not having distilled any issues from the original ground of appeal which is an omnibus ground and ground 4 of the additional ground of appeal, both grounds are deemed abandoned and are hereby struck out – Ojo vs. Kamalu (2005) 18 NWLR (Pt.958) 523.
On perusal of the appellants brief, it is clear that counsel was clearly confused in putting together his argument. For example on his issue number one which is whether failure of the prosecution witnesses who were eye witnesses to identify the appellants in their petition to the police was not fatal to the prosecution’s case, counsel presented the following argument:-
“It is our contention that from the testimonies of PW1 who is the victim, PW2 and PW3 who are the allege eye witnesses, reflected above as given in the court below, the findings of the trial court that appellants were guilty of offence of armed robbery was perverse as the facts reflected above did not support the offence of armed robbery but a reflection of the age long acrimony between Emuhu Community and Ileje Community arising from land dispute in which the two communities have being involved in series of skirmishes and litigation even up to the Supreme Court. It is submitted therefore that the trial court was wrong in convicting the accused persons for the offence of armed robbery as the facts of the case did not support the findings of the court and the findings of the court were perverse in relation to the evidence led. On treatment by Appeal Court of perverse findings of a lower court; we refer the court to the case of Gbafe v. Gbafe (1996) 6 NWLR (Pt.455) 417 @ 423 ratio 10 (p.430, paras D-E)”
This argument has no relevance to issue No. 1 but appellants’ issue No.2 which is whether the trial court was not wrong in convicting the appellants for armed robbery when the facts of the case did not support the offence of armed robbery. Counsel dealt with appellants’ issue 3 relating to Alibi as issue 2 and his issue 3 as issue one. Ordinarily, where the arguments ostensibly canvassed on the basis of a ground of appeal are at variance with the ground and its particulars, the ground of appeal will be struck out and argument proffered thereon will be discountenanced’ See Ojo vs. Kamalu supra; Eholor vs. Osayawe (1992) 6 NWLR (Pt.249) 524.

Parties are bound by the issues they formulate in their briefs of argument. The court is limited to the issues raised by the parties. The mix up in the appellants’ brief is an act of gross carelessness and should be deprecated. However, in the interest of justice, I shall still attempt to look at the merits of the appeal.
The appellants issue one is whether the failure of the prosecution witnesses who were eye witnesses at the scene to identify the appellants in their petitions to the police was not fatal to the prosecution’s case. This was argued from pages 10-12 of the appellants’ brief. Copious references were made to the evidence of PW2 and 3 to show that their community petitioned the commissioner of police at Asaba about the robbery. Nowhere in the evidence of the prosecution witnesses can it be inferred that the names of the appellants were not mentioned in the community petitions and, more importantly, these petitions were never placed before the trial court. The defence never asked for them as they were entitled to and the trial court cannot speculate on their content. This issue is resolved in favour of the respondent.
Appellants, issue No. 2 is whether the trial court was not wrong in convicting the appellants for armed robbery when the facts of the case did not support the offence of armed robbery. I had earlier in this judgment set out the kernel of the appellants’ argument in this regard. Where in the process of a dispute a crime is committed, the fact that there is a standing dispute cannot justify that crime. The PW1 was assaulted and had his bicycle and cutlasses taken from him in his farm. That was established before the trial court. The accused persons never contended that this act was perpetrated in continuation of an existing land dispute. There was evidence which the trial court accepted that the appellants perpetrated this act. There was no evidence that these snatched properties were ever returned to PW1. There is nothing in the record of appeal to show that the conclusions of trial court are perverse. This issue is resolved in favour of the respondent.
Appellants issue No. 3 is whether the trial court was not wrong in holding that 1st appellant failed to provide the particulars of his defence of Alibi. A defence of Alibi is set up when a person alleged to have committed an offence says he was in some other place other than the scene of crime at the time the offence was purported to have been committed. In setting up the defence of alibi the accused at the earliest opportunity must give particulars of his alibi. The 1st appellant in this appeal contends that he had set up a defence of alibi. The earliest opportunity he had was when he made his statement to the police exhibit P1. In exhibit P1, the 1st appellant said that in the month of March, 2006 he was busy attending to his orchard and would go to Onitsha to sell the products of the orchard with his wife. The allegation is that this statement about his going to Onitsha with his wife to sell fruits was not investigated by the police. But that was not necessary.
The charge against the 1st appellant was that on or about the 1st of July 2006 he committed the offence of armed robbery NOT in March 2006 when he claimed he was busy traveling to Onitsha with his wife to sell his fruits. This issue is also resolved in favour of the respondent. There is no merit in this appeal and it is hereby dismissed.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the advantage of reading in draft the leading judgment just read by my learned brother, R. C. Agbo, J.C.A. I agree that this appeal is devoid of merits. Consequently, I also dismiss this appeal.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother AGBO, JCA, just delivered. I agree with his reasoning and conclusion.
The law is that where the trial court has properly carried out its primary duty of evaluating the evidence before it, an appellate court will not interfere with the decision arising therefrom, unless it is shown that in reaching its decision the court took extraneous matters into account or wrongly applied the law to the established facts.
See EBBA v. OGODO (1984) 1 SCNLR page 372.
In the instant case, the learned trial Judge undertook a critical appraisal of the evidence before him and reached a decision supported by the evidence on record.
The appellants have failed to show that the judgment is perverse. I therefore agree with my learned brother in the lead judgment that this appeal lacks merit. It is accordingly dismissed. The judgment of the lower court is affirmed.

Appearances

A. C. OluijiFor Appellant

AND

O. F. Enemo D.D.P.P. with him J. U. UgwuokeFor Respondent