GODWIN OKON ITA & ANOR v. THE STATE
(2013)LCN/6280(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2013
CA/C/14C(B)/2012
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. GODWIN OKON ITA
2. ENO JAMES ESSIET Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT THE POLICE ARE TO INVESTIGATE A DEFENCE OF ALIBI ONCE IT IS RAISED
Where an accused raises a defence of alibi early enough, the Police is to investigate it. But it can only be investigated where the accused gives adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. Nsofor v. State (2002) 10 NWLR (Pt. 775) page 274.
“An accused person is not required to prove his alibi. The onus is on the prosecution to disprove the alibi. However, where there is enough particular provided by the accused, failure to investigate will be fatal to the prosecution. Sowemimo v. State (2004) 11 NWLR (Pt. 885) page 515, Aiguoreghan v. State (2004) 3 NWLR (Pt. 860) page 367, Nsofor v. State (supra)In the instant case, the 2nd Appellant did not give detailed particulars for the alibi to be properly investigated. PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT A FORMAL WITNESS IS UNDER COMPULSION TO GIVE EVIDENCE IN COURT
In law, a formal witness, such as a policeman giving evidence qua policeman, is under no compulsion to give evidence in court. He cannot also be compelled to give a particular kind or type of evidence. However, while the law gives him freedom to give only the kind or type of evidence he wants to, the same law vests in the court the power to accept or refuse such evidence. Na-Bature v. Mahuta (1992) 9 NWLR (Pt. 263) 85. PER NDUKWE-ANYANWU, J.C.A.
UZO I. NDUKWE-ANYANWU, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State delivered on 20th October, 2010 in Suit No. HKN/12C/2009.
The 2nd Appellant Eno James Essiet with the 1st Appellant Godwin Okon Ita were charged with the murder of Felix Okon Ita on 21st August, 2008 contrary to Section 326 (1) of the Criminal Code Cap. 38 Vol. 11 Laws of Akwa Ibom state 2000.
The prosecution/Respondent called four witnesses and tendered fourteen (14) Exhibits. The accused/Appellants called only one witness and tendered sixteen (16) Exhibits. At the end of a full trial, the trial Judge delivered his considered judgment and found the 2nd Appellant guilty and sentenced her to 3 years imprisonment. Aggrieved by the said judgment the 2nd Appellant filed a notice and four grounds of appeal on 19th January, 2011.
The 2nd Appellant filed her Appellant’s brief on 23rd March, 2012. In it she articulated three issues for determination as follows:
Whether the Defence of Alibi did avail the 2nd Accused/Appellant who raised Alibi timeously (Ground 1)
“Whether the court can pick and choose which prosecution Witness to believe when none of the prosecution witness was branded a hostile witness and wherein the testimonies of the prosecution witnesses were contradictory and inconsistent. (Ground 4)
Whether the testimonies of PW2 and PW3 were hearsay evidence Contrary to Section 77 Evidence Act (Now section 37 Evidence Act. 2011 as such amended) as such inadmissible. (Ground 2).
The Respondent filed its brief on 5th September, 2012 but deemed properly filed and served on 6th December, 2012. The Respondent articulated three issues for determination as follows:
“WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE CONVICTED THE 2ND ACCUSED APPELLANT ON THE GROUND THAT THE 2ND ACCUSED/APPELLANT DID NOT GIVE PARTICULARS OF HER ALIBI (GROUND 1)”.
Whether the conviction of 2nd Appellant was based on hearsay evidence.
Whether the Learned Trial Judge erred in law when he believed the credible evidence of one witness against the incredible witness of the other to arrive at his decision.
The issues articulated by both parties overlap, however, I will utilize the issues articulated by the Appellant in this appeal.
ISSUE 1
Learned counsel to the Appellant submitted that the trial Judge held that the defence of alibi did not avail the 2nd Appellant. Counsel argued that the 2nd Appellant raised her defence of alibi timeously and equivocally in Exhibit 10 – her extra judicial statement. Counsel relies on a list of decided authorities on this issue. They are: Augustine Onuchukwu and 2 Ors v. State (1998) 4 NWLR (Pt. 547) 576 Ratio 3.
Okosi v. State (1989) 1 NWLR (Pt. 100) 642
Abudu v. State (1985) 1 NWLR (Pt. 1) 55 Ratio 4
Gachi v. State (1965) NMLR 333
Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367
Ratios 11-19
Obiode v. State (1965) All NLR 35
Yanor v. State (1965) NMLR 337
Lamu v. The State (2009) 4 SCM 40
There is no burden on the accused to prove his alibi once he has given the particulars to the police. Once a defence of alibi is put up timeously, it is the duty of the police to investigate this defence. Failure to investigate this defence of alibi could raise reasonable doubt in the mind of the trial court. See the decision of the Courts in the cases of Onuchukwu & 2 Ors. v. State (1998) 4 NWLR (Pt. 547) page 576, Odili v. State (1977) 4 SC 1, Onafowokan v. State (1987) 13 NWLR (Pt. 61 page 538, Abubakar Tijani Shehu v. The State (2010) 4 SCM pt 180 page 194. Counsel submitted that, the Investigative Police Officer, Pw 4, confirmed that the 2nd Appellant did, in fact, go to the farm on that day.
Counsel urged the court to hold that failure of the prosecution to investigate the defence of alibi should be resolved in favour of the 2nd Appellant.
In response, the learned counsel to the Respondent submitted that it is well established that alibi means that the accused was somewhere other than where the prosecution alleged she was at the time of the commission of the offence. Therefore, she could not have committed the offence. Gachi v. The State (1965) NMLR page 888. Ndukwe v. State (2009) 37 NSCQR page 425.
Further an accused who seeks to rely on the defence of alibi must furnish, the police the particulars to aid the police in their investigation. See Afe v. the State (2006) 8 NWLR (Pt. 982) page 345, Yanor v. The State (1965) All NLR page 193, Obiode v. The State (1970) NSCC page 31.
Counsel went on to refer the Court to Exhibit 10, the 2nd Appellant’s statement made on 18/11/2008 where she said she went to a farm far away without given particulars as to the location. Whether there was anybody with her in the farm? Whether she saw anybody on her way to and from the farm? Whether she met anyone on her way to or from the farm? See Okosi v. The State Okosi v. The State (1989) NWLR (Pt. 100) page 91, Ozulorye & Ors. v. State (1981) NCR page 318, Nnosis v. The State (1976) SC page 109.
Counsel submitted that there was no alibi raised by the 2nd Appellant which needed to be investigation. See Udoebre v. State (2001) 6 SCN page 58. The 2nd Appellant sent the Investigative Police Officer to Ibiaku to look for Ekaboy. This was very vague and resulted to nothing. Counsel urged the court to hold that the Investigative Police Officer was just giving his opinion about the 2nd Appellant going to the farm, whereas he did not investigate that: Counsel submitted that the courts do not allow opinion of witnesses. See Obinwanne v. Tabansi – Okoye (2006) 8 NWLR (Pt. 281) page 104.
Finally learned counsel urged the court to hold that the trial Judge did not believe the defence of Alibi as PW1 and PW2 definitely placed the 2nd Appellant at the scene of the offence. Ndukwe v. State (2009) 37 NSCQR page 425. Counsel urges the court to resolve this issue against the Appellant.
The 2nd Appellant raised a defence of Alibi in her statement to the police Exhibit 10. This is what she said
“On a date I could not remember again, I left the house to my farm at about 6.30 am in the morning since the farm land is far from house, and I came back from the farm at about 7.00pm of that day”.
This is the much she gave about her alibi on the day of the offence. The law says it is not enough for an accused to raise a defence of alibi at large.
“The accused must give adequate particulars of his where about at the time of the commission of the offence to assist the Police to make a meaningful investigation of the alibi” Nsofor v. State (2002) 10 NWLR (Pt. 775) page 274, Balogun v. Attorney-General, Ogun State (2002) 6 NWLR (Pt. 763) page 512.She also stated
“After I heard the information I ran to Ibiaku village, I don’t know the Landlord’s name and my friend (sic) name is Eka-Boy other names unknown to me”.
The Investigative Police Officer took up the investigation of this and it ended in nothing. The Investigative Police Officer could not locate the said Eka-boy. The 2nd Appellant provided no particulars for the alibi to be fully investigated.
Where an accused raises a defence of alibi early enough, the Police is to investigate it. But it can only be investigated where the accused gives adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. Nsofor v. State (2002) 10 NWLR (Pt. 775) page 274.
“An accused person is not required to prove his alibi. The onus is on the prosecution to disprove the alibi. However, where there is enough particular provided by the accused, failure to investigate will be fatal to the prosecution. Sowemimo v. State (2004) 11 NWLR (Pt. 885) page 515, Aiguoreghan v. State (2004) 3 NWLR (Pt. 860) page 367, Nsofor v. State (supra)In the instant case, the 2nd Appellant did not give detailed particulars for the alibi to be properly investigated.
Moreover, the two eyewitnesses to this crime PW1 witnessed the 1st Appellant, the 2nd Appellant and six others still at large attack the deceased at both scenes. The PW2 witnessed the attack of the deceased at the first scene where the 1st and 2nd Appellants and others attacked the deceased.
It therefore means that the 2nd Appellant was unequivocally pinned to the Locus in quo. The 2nd Appellant was amongst the people who attacked, beat and killed the deceased Felix Okon Ita. Sowemimo v. State (supra).
The defence of alibi in this case does not avail the 2nd Appellant as she was unequivocally pinned to the scene of the murder. This issue is therefore resolved against the Appellant.
ISSUE 2
Learned counsel to the Appellant submitted that the trial Judge chose the evidence of PW1, PW2, and PW3 as against that of PW4 which was perverse. Counsel argued that the PW4 was not declared a hostile witness and as such his testimony ought to be relied on. See the case of Christopher Onubogu v. state (1974) 9 SC 1 page 561, Gabriel v. State (1989) 5 NWLR pt 122 page 451. A court is forbidden to pick and choose which prosecution witness to believe Muka v. State (1976) 9-10 SC page 325.
Counsel contends that when the evidence is compatible with both the innocence and guilt of the accused persons, the prosecution cannot be said to have proved its case beyond reasonable doubt. Also the prosecution did not brand PW4 a hostile witness and as such, the trial Judge does not have the vires to pick and choose which prosecution witness to believe.
Counsel argued that there are inconsistencies in the evidence of PW1, PW2 and PW3 as against PW4 which is fatal to the prosecution’s case. Nasamu v. State (1979) 6-9 SC page 153; Ndike v. State (1994) 8 NWLR (Pt.360) page 33, Gabriel v. State (2000) 34 WRN 126, Ogoala v. State (1991) 2 NWLR pt.175 page 509.
Counsel contends that there are contradictions and inconsistencies in the evidence of the 4 prosecution witnesses and the trial Judge cannot pick and choose which one to believe. Anyanwu v. State (1986) MWL (Pt. 43) page 612 Arelius & Ors. v. State (1982) 4 SC page 88.
Counsel finally submitted that the evidence of PW4 was substantial enough to create a doubt which should be resolved in favour of the 2nd Appellant.
In response, the counsel to the Respondent submitted that the guilt of an accused person can be proved by:
a. The confessional statement of the accused person
b. The circumstantial evidence
c. Evidence of eye-witness of the crime
Udoebre v. State (2001) 6 SCNJ 580 holding 6
Chiokwe v. State (2005) NWLR (Pt. 918) at page 424 at 44.
Counsel submitted that the eye witness account is the best evidence in criminal trials. To be able to prove that the 2nd Appellant in concert with the 1st Appellant and six others still at large killed the deceased, the Court ought to rely on the eye witness account of PW1 and PW2. Loni v. State (1980) page 841 SC 81.
“PW1 gave an eye witness account of what happened in Odoro Ikpe and Ndot Ikpe, where the 1st and 2nd Appellants and six others still at large attacked the deceased with matchets, iron rods, and stones at Odoro Ikpe and deceased was killed at the second venue Ndot Ikpe. Amala v. The State II MGC (2004) page 141. As they were beating the deceased they were saying:
“That Felix was not our father’s son and that they had warned him to go away but he refused, that, that day will be his last day in the family”.
The deceased Felix Okon Ita died on the spot at Ndot Ikpe. Sule v. The State (2009) (Pt. 384) NSCQR page 1069. The PW1 continued that:
“After they machetted my brother they went into his house, broke down the door of his house and threw his things outside”.
State v. Aibangbee (1998) 1 ACLR page 168.
The evidence of PW1 was direct, positive, unmistakenly and conclusively fixed the 2nd Appellant as one of those who attacked the deceased at Odoro Ikpe and later killed the deceased in Ndot Ikpe. Joshua Alonge v. IGP (1995) 4 FSC page 208, Adeye v. Adesanya (2001) 6 NWLR (Pt. 708) page 1.
Under cross-examination, PW1 stated:
“The 2nd accused person 2nd appellant “She was one of those people who used rod to beat my brother”.
Counsel submitted that a simple, convincing, positive and conclusive evidence of an eye witness if believed by the Court is enough to convict an accused. Womilogu v. Kiki (2009) 16 NWLR (Pt. 1166) page 143, Yaki v. State (2008) Acc (sic) FWLR (Pt. 440) page 618.
Counsel submitted that PW2 was also an eye witness. This is what he said in his evidence:
“I saw a fight between the 1st accused and the 2nd accused on one side and Felix on the other side. Benjamin was also in the fight in support of the 1st accused person. One of the persons that witnessed it was a man who lives opposite the place where the fight took place, his name is Etefia. The second person is that young man sitted there who ran and met the scene (he points at PW1)”, he went on to state “after I had separated them, the deceased left in a machine but the 1st accused and 2nd accused persons mounted a motorcycle and followed the deceased telling me that since I had interrupted the fight there, they would meet the deceased elsewhere at Ndot”. PW2 went further down in page 49 lines 14 – 17 of the record and said “they said that since I had separated the fight at that spot and they could not harm the deceased enough, they taunted me that I should come over to Ndot and try to separate them”.
Counsel continued that the PW2 did not witness the attack at the second scene, which was a continuation of what happened in the first scene. Counsel urged the court to believe the eye witness account of the PW1 and PW2.
Furthermore, counsel submitted that PW3 gave an account of the threat of the Appellants and others at large, that they will kill the deceased. The 2nd Appellant and the rest who carried out the threat on 20/8/2008 eventually succeeded in killing the deceased on 21/8/2008. It goes to say that the 2nd Appellant and the others had formed a common intention to kill the deceased for not being the son of Pw3. See Oyakhiare v. State (2003) 15 NWLR (Pt. 947) page 165.
Counsel contends that the evidence of PW3 was not hearsay evidence but circumstantial evidence that lead to no other conclusion. Finally that the evidence of Pw3 was very positive, equivocal and irresistibly points to the conclusion that the 1st Appellant in company of the 2nd Appellant killed the deceased.
Counsel submitted that the primary duty of a trial Judge is to weigh and ascribe probative value to all the evidence placed properly before it. The learned trial Judge evaluated the evidence of PW1, PW2, PW3 and PW4 and thereafter ascribed probative value on them. The trial Judge preferred the evidence if PW1, PW2 and PW3 to that of PW4. Counsel urged the Court to hold that the evidence of PW1, PW2 and PW3 was credible as against that of PW4.
Evaluation of relevant and material evidence before court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for the views of the trial court.
Agbi-Ogbe (2006) 11 NWLR (Pt. 990) 65
Bashaya v. State (1998) 5 NWLR (Pt. 550) 351
Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565)The trial Judge evaluated the evidence of PW1, PW2, PW3 and PW4 but he ascribed greater value on the eyewitness account of PW1 and PW2. Both of them gave evidence as to what happened at the two venues of the attack PW1 and PW2 pinned the 2nd Appellant to the scene of the attack and eventual murder of the deceased. Both their evidence debunked the defence of alibi which 2nd Appellant put up.
The trial Judge disbelieved the evidence of PW4 as he testified as to his opinion of what might have happened. One cannot say that the evidence of PW4 contradicted the evidence of the other prosecution witnesses. All the other three witnesses gave evidence of what they saw and heard whilst PW4 gave evidence of what he thought happened. He did not have a correct information of what happened through his own investigation. He just gave an opinion which is not buttressed by hard facts as to what happened. The Investigative Police Officer is a formal witness:
In law, a formal witness, such as a policeman giving evidence qua policeman, is under no compulsion to give evidence in court. He cannot also be compelled to give a particular kind or type of evidence. However, while the law gives him freedom to give only the kind or type of evidence he wants to, the same law vests in the court the power to accept or refuse such evidence. Na-Bature v. Mahuta (1992) 9 NWLR (Pt. 263) 85The trial Judge was indeed not compelled to accept the evidence of the Investigative Police Officer. He was therefore right in preferring the evidence of PW1, PW2 and PW3 to that of PW4 and using it. PW3 gave evidence of how 1st and 2nd Appellants and the other six persons still at large came to his house and threatened to kill the deceased. The deceased was thereafter killed the following day by them.
The trial court did not base its decision on speculation and extraneous matters not supported by evidence like the Appellant counsel wants the court to believe. Onuoha v. State (2002) 1 NWLR (Pt.748) page 406.
The PW3 was not an eye witness to the killing of the deceased.
However, he was threatened by the killers the day before. After the killing the 2nd Appellant in concert with others went to the house of Pw3 to remove the property of the deceased. All these formed a circle of events which lead irresistibly to the evidence of the PW3 which informed the decision of the trial Judge.
The evidence of PW1, PW2 and PW3 were cogent and comprehensive. The eyewitness account of PW1 and PW2 is enough to ground a conviction.
Although the burden of proving a charge against an accused is upon the prosecution, where, however, the prosecution has adduced evidence, which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of sections 138(3), 139, 141 and 142 of the evidence Act. Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 at 89, Imhanria v. Nigeria Amry (2007) 14 NWLR (Pt. 1053) 76 C.A.
The prosecution proved the charge against the 2nd Appellant beyond reasonable doubt. This issue is also resolved against the 2nd Appellant.
ISSUE 3
Learned counsel to the 2nd Appellant submitted that the evidence of PW2 and PW3 was hearsay evidence as they were not at the scene when the deceased was killed. Counsel submitted that any evidence that is inadmissible must be rejected on appeal event if no objection was raised as held by the Supreme Court in Anyaebosi v. R.T. Briscoe (Nig) Ltd. (1987) 6 SCNJ (1999), Garba Audu v. Salmanu Ahmed (1990) 5 NWLR (Pt. 150) page 287, Alade v. Okulade (1976) 7 SC page 183.
Counsel urged the court to hold that the evidence of PW2 and PW3 are manifestly hearsay evidence which offends S. 37 Evidence Act and cannot form the basis of any judgment. Counsel finally urged the court to resolve this issue in favour of the 2nd Appellant.
This issue has intertwined the previous two issues canvassed by both parties. At the risk of being repetitive I will state it again. PW2 Samuel Akpan Nta witnessed the fight between the deceased on one side and the 1st, 2nd Appellants and six others still at large on one side. PW2 stated that he was on his way back from work when he witnessed the fight. PW2 continued that the Appellants carried the deceased up and threw him on the ground repeatedly. They were carrying matches, rods and stones which they used in attacking the deceased at Idoro Ikpe – the first venue of the attack. PW2 said he separated the fight and the deceased drove off with his motorcycle. However, PW2 said that the Appellants taunted him that he should try and come to Ndot Ikpe and separate them again. The P2 did not go to Ndot Ikpe, but soon after the deceased left, the 1st and 2nd Appellants and six others pursued the deceased. PW2 noted that all the attackers had either matchets, stones or rods and the deceased had no weapon. PW2 also said they tore the clothes of the deceased. PW2 had to give PW1 his clothes as he had given his to the deceased as the Appellants and the six other had torn the clothes of the deceased.
PW 2 said he did not go to the 2nd scene Ndot Ikpe but soon after he saw the deceased being carried by another cyclist with another person propping him up.
This is the sum of the evidence of the PW2. He did not go to Ndot Ikpe but seeing the deceased soon after he was pursued by his attackers. It would be safe to infer that his attackers must have killed him. This part of the evidence of PW2 is circumstantial evidence that leads to no other conclusion.
Circumstantial evidence is as good as and sometimes better than direct evidence. It is sometimes referred to as the best evidence capable of proving a proposition with the accuracy of mathematics.”
Obiakor v. State (2012) 10 NWLR (Pt. 776) 612.PW3 gave an eye witness account of the threat of the 1st Appellant, 2nd Appellant and the six others still at large in his house. Soon after the 1st, 2nd Appellants and six others killed the deceased, they ran back to the house and brought out everything belonging to the deceased outside. They had intended to burn his property. This is not hearsay evidence. Pw3 said what he saw and experienced. This cannot be hearsay. Pw3 never claimed he saw the deceased being killed.
The sum total of the evidence of the Pw3 is that those who threatened to kill the deceased had succeeded. The circumstantial evidence leads to no other conclusive other than, that, those who threatened to kill him have done so.
The evidence of Pw1, Pw2 and Pw3 is not hearsay evidence as the 2nd Appellant’s Counsel, would want the court to believe.
The trial Judge was right in believing the evidence of Pw1, Pw2 and Pw3 as against that of Pw4 and the 2nd Appellant.
This issue is also resolved against the 2nd Appellant.
The three issues articulated by the 2nd Appellant have all been resolved against her. This appeal is devoid of merit and therefore dismissed. I affirm the judgment of the trial Judge. I also affirm the conviction and sentence of the 2nd Appellant Eno James Essiet.
JOSEPH TINE TUR, J.C.A.: I was privileged to read an advance copy of the judgment delivered by my Lord Uzo I. Ndukwe-Anyanwu, JCA and I concur with the summary of the facts and conclusions arrived at.
If the appellant left her house for her farm at about 6:30am and returned to the same house at about 7:00pm on the day of the killing of the deceased and upon learning of the incident she ran to Ibiaku village, whom did the appellant name in her extra-judicial statement as those the police could investigate her alibi? No exact particulars of the where about of the appellant were given to enable the police verify the defence of alibi. Rather the evidence of Pw1 and Pw2 fixed the appellant at the scene of the commission of the crime. She actively participated in the killing of the deceased on that unfateful day.
Where there is cogent, sufficient and accepted evidence fixing the appellant at the scene of crime and that she actively participated in the beating and stoning of the deceased as described by the prosecution witnesses, the defence of alibi is demolished. See Njovens v. The State (1973) 5 SC 17 at 65; Esangbedo v. The State (1989) 7 SCNJ 10 and Odichika v. The State (1977) 2 SC 21.
There was no doubt in the mind of Pw1 and Pw2 about the identity of the appellant who happened to be his father’s ex-wife. There was no need to conduct an identification parade in this circumstance. See Alabi v. The State (1993) 9 SCNJ (Pt. 1) 109 at 122 and Ikono v. The State (1973) 5 SC 231. The onus adducing evidence in the trial court which will contain sufficient particulars of the alibi to enable the police to investigate the alibi was not discharged by the appellant. See Nwosisi v. The State (1976) SC 109 and Ukwunnenyi v. The State (1989) 7 SCNJ 34 at 43.
My humble view is that the appellant was rightly convicted by the learned trial Judge. The appellant did not appeal against sentence. Certainly, if she did she deserved the death sentence taking into consideration the role she played with her siblings in the killing on the grounds the deceased was not the son of her ex-husband (Pw3) and should vacate his former husband’s compound.
This appeal lacks merit and is dismissed. I affirm the judgment of the lower Court.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading in advance the Judgment just delivered by my learned brother Ndukwe-Anyanwu, J.C.A. I am in complete agreement with the conclusion that this appeal lacks merit. All issues raised herein being resolved against the 2nd Appellant, I also dismiss the appeal. On the issue of the defence of alibi, I would only make few comments in support.
The plea of alibi by a person accused of an offence proposes that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of crime because of his presence at another place. In Ogoala v. State (1991) 2 NWLR (Pt. 175) 509; the Supreme Court per Nnaemeka Agu, J.S.C. (of blessed memory) said:
“Now the word “alibi” literally means “elsewhere.” When an accused person’s defence to a criminal charge is alibi he is saying that he was of another place of the time material to the charge: see Gachi & Ors. v. The State (1965) NMLR. 333. It is no proper way of raising a defence of alibi for an accused person to show that he was elsewhere of a time antecedent to the time the crime was proved to have been committed unless he can show that, because he was of that place of that time, it was impossible for him to have been of the scene of the crime when it was shown to have been committed. It is of course when the defence of alibi has been duly raised and the accused person additionally discharges the evidential burden incumbent on him by giving the particulars of that other place where he was of the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and, at the trial disprove, the alibi is cost on the prosecution. Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi it is part of the onus cast on the prosecution to disprove the alibi. See on these – Abudu v. The State (1985) 1 NWLR (Pt. 1) 55; Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57; and Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 131. Once the duty of the prosecution to disprove the alibi arises in the manner f hove stated, they con do that by showing directly that the accused person was wrong in his claim to have been at another place during the commission of the offence or by calling evidence so strong and connecting the accused person with the commission of the offence charged that his defence of alibi cannot be true: See Ortese Yanor 4 Ors. v. The State (1965) NMLR 337.”
See also: Ochemaje v. State (2008) 6-7 S.C. (Pt. II) 1.Therefore where an accused person does not provide adequate particulars to ground a defence of alibi, the evidential burden on the accused person is not discharged; and, the duty of the prosecution to investigate or disprove the alibi will not arise. For that reason, the defence of alibi, with the vague details provided by the 2nd Appellant, do not avail her.
For these reasons and for the more comprehensive reasons given in the lead Judgment, I abide with the Order affirming the conviction and sentence of the 2nd Appellant.
Appearances
M. Umoh Esq.For Appellant
AND
F. J. Ibanga AD Ministry of JusticeFor Respondent
