HAPPY KINGSLEY IDETUDIA v. THE STATE
(2011)LCN/4242(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of January, 2011
CA/B/283/08
RATIO
DEFENCE OF ALIBI : WHAT A DEFENCE OF ALIBI ENTAILS
A defence of Alibi by an accused is a combined defence of lack of ‘actus reus” and “mens rea”; i.e., that he was not at the scene of the crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter or fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See GACHI V. STATE (1965) NWLR 333; ODIDIKA V. STATE (1977) 2 SC 21 and UKWUNNENYI v. STATE (19S9) 4 NWLR (Pt.114) 131 at 144. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
DEFENCE OF ALIBI : DUTY IMPOSED ON AN ACCUSED WHO RAISES ALIBI AS A DEFENCE TO THE COMMISSION OF A CRIME
Where an accused sets up an Alibi as a defence, the mere allegation that he was not at the scene of the crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime.See YANOR V. STATE (1965) 1 AU NLR 193. SALAUI V. STATE (1988) 3 NWLR (Pt. 85) 670 at 677. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
HAPPY KINGSLEY IDETUDIA Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment): The Appellant in this criminal appeal was arraigned before the High Court of the Isiokolo Judicial Division of Delta State presided over by F.O. Oho J. on an information of two count charge of conspiracy to commit armed robbery and attempted armed robbery. The prosecution’s case against the Appellant was that on 21/2/06 at about 11.30pm while one Samuel Odorume (who testified as PW2) and his wife were returning to their house from a journey, the Appellant and about four other persons accosted them and the Appellant whom PW2 had known earlier ordered PW2 to throw away the cigarette he was smoking. As he did so, the Appellant who was armed at the time and the other persons including one Stanley and another called Aboki then searched him under gun point and found the sum of N50.00 (fifty naira) on him. Although they returned the money stating that they were not there to steal N50.00, the Appellant threatened to Tail down PW2 – a term which meant to kill him. It took the plea of one of the members of the gang who had recalled that he had recently eaten from the PW2’s wife’s pot, to dissuade the Appellant from carrying out his threat. The Appellant and the other members of the gang then took them to the house of PW2’s elder brother’s wife, Mrs. Ngozi Odorume where he (PW2) was asked to wake her up and when PW2 refused, the gang sat him and his wife down and started breaking the louvre blades of the window. Thereafter the gang escorted PW2 and wife home with the Appellant warning PW2 that if he (PW2) said anything of the incident he would be a dead man. The Appellant was subsequently seen at the Abraka Police Station and identified by PW2.
The defence of the Appellant was one of Alibi. He claimed that on the day of the incident he was at Warri in the house of his elder brother. The police had contact with Appellants elder brother, one Gabriel of No. 24 Ojabugbe Street, Okumagba Avenue, Wani, who stated that the Appellant was in his house.
At the conclusion of hearing, the trial court in his Judgment believed the case of the prosecution and disbelieved the case of Alibi presented by the Appellant. He then convicted the Appellant who being dissatisfied with that Judgment has brought the present appeal. Three Grounds of Appeal were filed from which learned counsel for the Appellant Mr. Asugo, in his brief distilled two issues namely:
1) “Was the Alibi of the accused person destroyed by the evidence of PW1 to make the learned trial Judge convict the Appellant in spite of it?
2) Was there sufficient evidence on record to prove beyond reasonable doubt that the Appellant conspired with others now at large to commit the offence of attempted armed robbery”.
The Respondent’s counsel, Mr. Enenmo, in his brief also set out two issues for determination as follows;
1) Whether having regard to the defence of Alibi raised by the Accused/Appellant the learned trial Judge was right when he held that the prosecution proved its case beyond reasonable doubt.
2) Whether there was sufficient evidence on record upon which the learned trial judge convicted the Appellant for the offence of conspiracy.
The issues raised by both counsel are similar though couched differently and can conveniently be compressed into one straight forward issue of narrow compass. It is:
Whether on the facts and circumstances of this case, the trial court was right in rejecting the defence of alibi put forward by the Appellant and holding that the prosecution proved its case.
In his brief of argument, learned counsel for the Appellant, Mr. Asugo, had contended that the defence of Alibi put up by the Appellant was not shaken, therefore the trial Judge’ according to him was wrong to have convicted the Appellant. He submitted that the trial Judge did not review the evidence nor did he give any reason for not being impressed by the defence of Alibi presented by the Appellant. More so when the wife of PW2 who was said to be present at the scene was not called by the prosecution to give evidence. The fact, he contended, that PW2 made his statement one year after the incident, even though he mentioned the name of the Appellant therein, weakened the effect of his evidence. He also argued that there was no proof of the offence of conspiracy.
In his reply, learned counsel for the Respondent, Mr. Enenmo, in his brief, referred to the evidence of PW1 and PW2 and submitted that their evidence sufficiently fixed the Appellant with presence at the scene of crime and therefore it was for the Appellant to call as witness the person that was with him on the day of the incident which he did not do. He argued that the charge having alleged a particular time in the commission of the crime, the Appellant ought to have led specific evidence as to where he was at the particular time alleged. The Alibi, he argued, was therefore vague. Moreover, he contended, the Appellant did not call his said brother to give evidence. The evidential burden was therefore, he argued, not discharged.
A defence of Alibi by an accused is a combined defence of lack of ‘actus reus” and “mens rea”; i.e., that he was not at the scene of the crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter or fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift.
See GACHI V. STATE (1965) NWLR 333;
ODIDIKA V. STATE (1977) 2 SC 21 and
UKWUNNENYI v. STATE (19S9) 4 NWLR (Pt.114) 131 at 144.
The evidence led by the prosecution was that the accused at about 11.30 pm on 12/2/06 in company of other persons attempted to rob PW2. The prosecution was, therefore, specific as to the time and date of the commission of the crime. The evidence of the victim, PW2, was detailed, and direct on these two essential aspects of the case. PW2 also stated that he knew the Appellant before the date of the incident and identified him at the police station when he saw him there. Having led the foregoing evidence fixing the Appellant with the time and date of the crime at the scene, the evidential burden of leading evidence on the Alibi on these points at least sufficient to cast doubt in the mind of the trial Judge was on the Appellant. But in contrast, although the Appellant gave evidence that he was with his elder brother in Warri on the date, nothing was said of the time and his said brother was not called.
Where an accused sets up an Alibi as a defence, the mere allegation that he was not at the scene of the crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime.
See YANOR V. STATE (1965) 1 AU NLR 193.
SALAUI V. STATE (1988) 3 NWLR (Pt. 85) 670 at 677.
In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side he believed. He did so extensively in relation to both counts on the information at pages 8 – 10 of the Judgment and particularly in relation to the defene of Alibi at page 10 of the records of appeal where he found, inter alia, as follows:
“Apart from the fact that I could not be impressed by the alibi of the accused person in view of the direct and positive evidence of PW2 which firmly fixes the accused person at the locus criminis, the PW2 struck court as a truthful witness… and cross examination did not succeed in shaking his resolve.”-…..
The above is a clear and succinct finding of fact which this court has no reason to distort or reverse.
In the same manner, the trial court made impeccable finding on the matter of conspiracy when after reviewing and evaluating the evidence at pages 8 that there was enough circumstantial evidence to ground a charge of conspiracy to commit the offence of armed robbery.
In the final result the issue is resolved in favour of the Respondent. The grounds of appeal fail and this appeal is dismissed.
The Judgment of the trial court is affirmed.
AMIRU SANUSI. J.C.A.: I had the advantage of reading before now the judgment prepared by my learned brother, Nwosu-Iheme, JCA just delivered. Although, I am in entire agreement with the reasoning and conclusion reached in the said judgment, I find it desirous to add a few comments of mine on one of the salient points addressed therein i.e. defence of alibi raised by the appellant, even if it will merely serve the purpose of emphasis.
In the instant case, the prosecution at the lower court, now respondent herein led evidence fixing the appellant at the locus criminis at about 11.30p.m. On 12th February, 2006 (the date of the commission of the crime) in company of other fellow criminals. He was therefore clearly fixed thereat at the specific time on the said day. The evidence of PW2, the victim, is unambiguous as to his familiarity of the appellant before the date of incidence and had satisfactorily identified him (appellant) at the police station. Although the defendant at the lower court now appellant, alleged that he was on that day at his elder brothers house one Gabriel who similarly confirmed his story when contacted by the police, the appellant did not call that his elder brother to testify in his defence.
An alibi defence is a defence which is aimed at persuading the court that the accused person could not possibly be at the scene of the crime as he somewhere else, most, probably, there were people who could testify that the time of the alleged crime and on the date of the crime too, he was not at the scene of the crime. In raising the defence of alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi to enable the police check the details. Failure of the accused to give the particulars of the alibi, weakens the defence. See Sowemimo v. State (2004) 11 NWLR (Pt.885) 575; Nsofor vs. State (2007) 10 NWLR (Pt.775) 274.
However, where an accused person is unequivocally pinned to the locus in quo as the one or as one of the accused persons who committed the offence, as in this instant case, the defence of alibi will no longer avail him. This is so because the defence of the appellant that he was else where had been destroyed by the evidence of PW2 which had adequately and quite satisfactorily fixed or tied him down to the scene of the crime at the time and date the offence was committed.
Now as I stated earlier, the appellant in this instant case though presented the defence of alibi, that he was in his elder brother’s house, he did not give full account of where he was at 11p.m. on the date of the crime and he also failed to call the person he said he was in his house to testify as to the material time of the commissioning of the offence. His defence must therefore fail as rightly held by the trial court. See Onyegba vs state (1995) 1 NWLR (Pt.391) 510; Ifejirika v. State (1999) 3 NWLR (pt.593) 59; Eysi vs The State (2000) 12 SC (pt.1) 24; Njiokwuemeri vs The State (2001) 14 WRN 96; Isiekwe vs. State (1999) 9 NWLR (pt.617) 43; Yanor vs. State (1965) 1 All NLR 193; Salami vs. State (1988) 3 NWLR (Pt.85) 670 @ 677.
Thus, in the light of all that I posited above, I am in entire agreement with the detailed reasoning of my learned brother and the conclusion she reached that the appeal is devoid of any merit. It therefore deserves to fail and I also dismiss it accordingly. I accordingly affirm the decision of the trial court wherein it convicted and sentenced the appellant of the offences charged.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading the draft of the lead judgment of my learned brother NWOSU-IHEME JCA. I agree with him that this appeal lacks merit. I wish to add that in establishing the defence of alibi, as the Appellant herein sought to do at the lower court it is not as if an accused person has no duty to discharge than the mere assertion of being elsewhere at the time the offence was committed. An accused person is duty bound to furnish the necessary information from which his whereabout at that crucial time can be checked. Where he fails to discharge that basic duty he cannot avail himself of the defence. Similarly, if there is evidence believed by the trial court that fixes the accused person at the scene of the crime where he was seen committing an offence, the defence of alibi will definitely collapse. See ADEKUNLE V. THE STATE (1989) 5 NWLR (Pt.123) 505.
It must be emphasized with respect to the facts and circumstances of this appear that the ipse dixit of an accused person cannot single-handedly help him as an accused who seek to rely on the defence of alibi must endeavour to get his witnesses to court to prove his alibi. This defence cannot be a cheap sanctuary or a scapegoat for criminals to use to frustrate the administration of criminal justice or no hoist a situation of helplessness on the courts. See NWABUEZE v. THE STATE (1988) 4 NWLR (Pt.36) 16 as per Nnaemeka Agu JSC at page 34. Appeal is dismissed and the judgment and sentence of the lower court are hereby affirmed.
Appearances
E. A. Okorie holding the brief of M. A. AsugoFor Appellant
AND
Chief V. E. Otomiewo Attorney-General of Delta State for the Respondent with him are C. O. Agbagwu Asst. Chief State Counsel and C. Umukoro State CouncilFor Respondent
