HARUNA v. KANO STATE (2020)

HARUNA v. KANO STATE

(2020)LCN/14590(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, September 10, 2020

CA/K/222/C/2015

RATIO

PLEADINGS: GROUNDS OF APPEAL.

It is elementary that appeals from the High Court to the Court of Appeal are governed by the provisions of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 241 (1) states, in part, that an appeal shall be as of right from the final decision of the High Court or the Federal High Court sitting at first instance and where the appeal is on grounds of law alone while Section 242 (1) states that appeal from the decisions of the High Court or of the Federal High Court to the Court of Appeal in all other instances, apart from those provided for in Section 241 (1), shall be with the leave of Court. These provisions have been severally interpreted by the Courts to mean that leave to appeal is required where the appeal is against an interlocutory decision of the High Court and the grounds of appeal are either on mixed law and facts or on facts alone, and that no leave to appeal is required where the appeal is against an interlocutory decision of the High Court and it is on grounds of law alone or where the appeal is against a final decision of the High Court, sitting as a Court of first instance, irrespective of whether the grounds of appeal are on mixed law and facts or facts alone – Globestar Engineering Company (Nig) Ltd Vs Malle Holdings Ltd (1999) 10 NWLR (Pt 622) 271, Ahamefule Vs Imperial Medical Center (2005) 5 NWLR (Pt 917) 51, NIC Vs Acen Insurance Co Ltd (2007) 6 NWLR (Pt 1031) 589, Kalagbor Vs General Oil Ltd (2008) All FWLR (Pt 418) 303 Reading through the notice of appeal, it is obvious that the complaints of the Appellant in Grounds Two to Eight thereof are directed at the final judgment of the High Court of Kano State, sitting as a Court of first instance, and as such the Appellant required no leave to file those grounds of appeal, whether or not the grounds of appeal are on mixed law and facts or facts alone. The first ground of appeal was directed at an interlocutory decision of the lower Court, the Ruling refusing the request of the Appellant for an adjournment, and a look through the ground of appeal shows that it is one of mixed law and facts and the Appellant required leave of this Court to file it. The records of the Court, as recanted in the earlier part of this judgment, show that the Appellant sought for and was granted leave by this Court to file the ground of appeal and to incorporate same in this appeal against the final judgment. The Appellant thus fulfilled all the prerequisites for including the ground of appeal in the present appeal. Therefore, the eight grounds of appeal of the Appellant are competent and the second contention of the Respondent on the preliminary objection was also not well founded. The preliminary objection of the Respondent is totally misconceived and same is hereby dismissed. . Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: ADJOURNMENT AS A MATTER OF RIGHT OR DISCRETION.

Now, the law, by a long line of cases, is, and has always been, that adjournment of cases fixed for hearing are not obtainable as a matter of course or as of right, but may be granted or refused at the discretion of the Court – African Continental Bank Ltd Vs Agbayim (1960) SCNLR 57. In Ilona Vs Dei (1971) LPELR 1495(SC), Udo Udoma, JSC, stated that “the question of whether or not to grant an adjournment is a matter in the discretion of the Court.” In Odusote Vs Odusote (1971) All NLR 219, Udoma, JSC, again stated that “the question of adjournment is a matter in the discretion of the Court concerned and must depend on the facts and circumstances of each case.” In Alalade Vs Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975) LPELR 405(SC), Coker, JSC opined that “it is never in dispute that the granting or refusal of an application for adjournment rests completely with the Tribunal or Court before which, the Counsel appears.” In Obomhense Vs Erhahon (1993) 7 SCNJ 479, Karibi-Whyte, JSC, reiterated that “the grant of adjournment in a cause is a matter entirely within the discretionary jurisdiction of the Court which it can exercise in accordance with the particular facts and circumstances of the case.” In Salu Vs Egeibon (1994) 6 NWLR (Pt 348) 23, Adio, JSC, reaffirmed that “the grant or refusal of an application for an adjournment involves an exercise of judicial discretion.”
It is elementary that discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt. 1151) 106.
The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor – Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429. In Nwadiogbu Vs Anambra/Imo River Basin Development Authority (2010) 19 NWLR (Pt 1226) 364, the Supreme Court stated at pages 381- 382 that:
“When a case has been fixed for hearing, the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard.”
It is apparent from the Ruling reproduced above that the lower Court found that the Counsel to the Appellant did not place sufficient materials before it to warrant it exercising its discretion in favour of the Appellant’s request for an adjournment of the hearing and it thus refused the application for adjournment. The Courts have held that where a Court refuses to exercise its discretion in favour of an applicant on the ground of insufficient materials, it is a legitimate reason for refusal of exercise of discretion – Williams Vs Mokwe (2005) 14 NWLR (Pt 945) 249, Federal Housing Authority Vs Kalejaiye (2010) 19 NWLR (Pt 1226) 147, Olatubosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt. 1319) 200, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 505.
The law is that where a Court gives legitimate, sufficient and correct reasons for exercise of discretion, and that the exercise is not based on its whims and fancies, it is presumed that it acted judicially and judiciously – Divine Ideas Ltd Vs Umoru (2007) LPELR 9009(CA), Nwaenang Vs Ndarake (2013) LPELR 20720(CA). To succeed on his complaint in this appeal therefore, the onus is on the Appellant to show that the reasons given by the lower Court for failing to exercise its discretion in favour of his request for adjournment were not appropriate on the peculiar facts and circumstances of this case and that the exercise of discretion by the lower Court was wrongful and requires the interference of this Court –Chijoke Vs Soetan (2006) 10 NWLR (Pt 990) 179, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt 1084) 612.
The contention of the Counsel to the Appellant in this appeal is that the refusal of the adjournment was unfair and occasioned a miscarriage of justice because that was the first and only one request for adjournment made by the Appellant and that the lower Court had in the course of the presentation of the case of the Respondent granted three adjournments at the request of Counsel to the Respondent and that as such the lower Court did not exercise its discretion fairly in refusing the adjournment sought by the Appellant. In other words, Counsel to the Appellant did not contend that the reason of insufficient materials given by the lower Court for refusing to exercise its discretion in favour of the request for adjournment was incorrect; his case was that since it was the first request for adjournment by the Appellant and lower Court had granted the Respondent three adjournments in the past, the lower Court ought to have granted the Appellant the adjournment sought as of right, irrespective of whether or not he gave good reasons there for. Unfortunately for Counsel to the Appellant, the law does not support the position canvassed by him. No party has a right to an adjournment, whether it is a first adjournment or tenth adjournment, and whether not the Court had earlier granted a request for adjournment in favour of the opposing party. Adjournment is not granted gratis, every adjournment must be earned by the party requesting for it – Olori Motors & Co Ltd Vs Union Bank of Nigeria Plc (1998) 6 NWLR (Pt 554) 493, Uzowulu Vs Akpor (2015) All FWLR (Pt 763) 1954. A Court does not grant adjournment simply because a party asks for it and the fact that a Court had granted an adjournment in favour of one party does not mean it must automatically grant the request of the other party – Solanke Vs Ajibola (1968) SCNLR 92, Anyafulu Vs Agazie (2004) LPELR 5944(CA), The City Waiters Ltd Vs Adio (2015) All FWLR (795) 368. Exercise of discretion must depend on the facts and particular circumstances of each application – Odusote Vs Odusote supra, Obomhense Vs Erhahon supra, Salu Vs Egeibon supra.
This same attitude of “adjournment as of right” was displayed by Counsel to the Appellant before the lower Court in his request for adjournment when he demanded for an adjournment instead of appealing to the discretionary jurisdiction of the lower Court for one. The words used by Counsel were, “I need an adjournment”. It is trite law that the Court is not at the beck and call of any of the parties to do as they wish and must, should always, be in control of proceedings before it – Fagbule Vs Rodrigues (2002) 7 NWLR (Pt 765) 188, Executive Governor of Osun State Vs Folorunsho (2014) LPELR 23088(CA). In Ononghen Vs Federal Republic of Nigeria (2019) LPELR 47689(CA), this Court made the point that “a Judge of a Court or Tribunal is the master of the proceedings. He is in charge of how and when the matters before him are heard. That is all within his prerogative. No one can remove that from the Court or Tribunal.”
Looking at the proceedings of the lower Court of the 20th of February, 2014, it is obvious that Counsel to the Appellant gave no information to the lower Court on the witnesses he proposed to call, he did not state the names of the witnesses and the nature and materiality of the evidence they were going to give and he offered no explanation for their absence from Court on the day and of their whereabouts and of the steps he intended to take to get them to attend Court on the next date. These are the requirements that an accused person seeking for adjournment of trial to call witnesses in his defence must meet – Omega Vs State (1964) All NLR 373, Yanor Vs State (1965) All NLR 199 cited by Counsel to the Respondent. The lower Court was justified in the circumstances to conclude that the witnesses were mere make-believe and did not really exist and to refuse the request for an adjournment to call non-existent witnesses. In Omega Vs State supra, the Supreme Court, per Coker, JSC, made point thus:
“An accused person is undoubtedly entitled to reserve his defence until the appropriate stage of his trial, but if he intends to call witnesses he must take timely steps to have them at his trial ready to give evidence at that stage-which means that he must summon them in advance, and that he cannot complain if, seeing that he has not summoned them, the trial Court refuses to grant him an adjournment for the purpose of summoning witnesses when he is called upon for his defence. In this case the appellant would not give the names of his proposed witnesses to the committing Magistrate; at the least he should have summoned his witnesses when he had notice of trial. He had plenty of time even when he saw his counsel before the trial began; but neither he nor his counsel asked for any witnesses to be summoned, and it becomes an abuse of language to say that the trial Court is to blame for not granting an adjournment when the true blame lies on the appellant owing to his own neglect… The learned trial Judge acted rightly in our view in refusing to delay the trial further by acceding to the appellant’s application for adjournment in those circumstances.
We cannot subscribe to the view that a Court of trial should adjourn the hearing at the instance of any party (be it the accused or the prosecution) when it is manifest that the application for such adjournment was made only for the purpose of delaying the proceedings.”
It is trite law that an appellate will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere – Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, Okeke Vs Oruh (1999) 6 NWLR (Pt. 606) 175. In Alsthom S. A. Vs Saraki (2000) 14 NWLR (Pt. 687) 415, Akintan, JSC, stated that:
“It is settled law that adjournments of cases fixed for hearing are not obtained as a matter of course. They may be granted or refused at the discretion of the Court. The exercise of such discretion, however, is a judicial act which must be premised on well established legal principles. It is therefore an act against which an aggrieved party may lodge an appeal. To succeed in such an appeal, the appellant must satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant.”
Counsel to the Appellant did not fault the reason given by lower Court for refusing the request for adjournment and did not display before this Court any injustice suffered by the Appellant by reason of the refusal of the request for adjournment. . Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: COMPETENCY OF THE EVIDENCE OF A CHILD.

Now, Section 175(1) of the Evidence Act provides that a child is a competent witness to testify, unless the Court considers that he is prevented from understanding the questions put to him or from giving rational answers to questions. Section 209 (1) of the Evidence Act continues that:
“In any proceedings in which a child who has not attained the age of fourteen years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”
These provisions have been interpreted by the Supreme Court to mean that before receiving the evidence of a child under the age of fourteen years, the trial Court must first satisfy itself that the child has sufficient intelligence to give evidence and understands the duty of speaking the truth and that where, in the opinion of the trial Court, the child meets these requirements, the child will give unsworn testimony. It is not part of the requirement of the law that the trial Court must state on the records of proceedings the specific steps it took to satisfy itself and to form the opinion that the child possessed sufficient intelligence to give evidence and understood the duty of speaking the truth, and that it is adequate that the records of proceedings show some evidence that the lower Court took steps to form such opinion and/or that the formation of the opinion could be reasonably inferred from the facts and circumstances of receipt of the evidence of the child – Okoye Vs The State (1972) 12 SC 115, Okon Vs State (1988) All NLR 173, Mbele Vs The State (1990) 4 NWLR (Pt 145) 484, Peter Vs The State (1997) 12 NWLR (Pt 531) 1, Dagayya Vs The State (2006) 7 NWLR (Pt. 980) 637, Idi Vs State (2018) 4 NWLR (Pt. 1610) 359, Abelegah Vs State (2018) 18 NWLR (Pt. 1650) 172.
The suggestion of Counsel to the Appellant that the test to be carried out by a trial Court to determine whether a child has sufficient intelligence to give evidence is different and must be separated from the test to determine that he understands the duty of speaking the truth is incorrect. It is one and the same test – Okon Vs The State supra, Mbele Vs The State supra. Thus, the questions asked in respect of one suffice for the other. The second test recommended in those cases is for determining whether the child understands the nature of an Oath and this is no longer a requirement under Section 209(1) of the Evidence Act. The heavy reliance placed by Counsel to the Appellant on decision of the Supreme Court in the case of Sambo Vs The State (1993) 6 NWLR (Pt. 300) 399 was inapposite as the Supreme Court expressly modified its decision in that case in the subsequent case of Peter Vs The State (1997) 12 NWLR (Pt 531) 1. This point was made by this Court in the cases of Olatunji Vs State (2009) LPELR 8880(CA), Hassa Vs State (2012) LPELR 14358(CA), Imasuen Vs State (2015) All FWLR (Pt 765) 365, and Obi Vs State (2016) LPELR 40543(CA).
In Idi Vs State supra, the Supreme Court, per Ogunbiyi, JSC, restated the current position of the law on the subject at pages 383 to 385 thus: “Contrary to the submission by the appellant’s counsel therefore, the law, as rightly posed by the counsel for the respondent, does not provide for the reflections of the questions and answers put by the trial Judge to the Pw1 but that Section 209(1) is asking the Court to form an opinion if Pw1 is possessed of sufficient intelligence to justify the reception of her evidence and understands the duty of speaking the truth.
By the counsel asking that the questions and answers are to be recorded in black and white, he is asking for a re-writing of the provision of the law, which is outside his mandate. The capability test is preliminary and it enables the Court to form an opinion as to the competence of a child to testify. Technicality as is sought to play by the appellant’s counsel cannot be accommodated.
… there is no where it is made a requirement that the trial Judge must record the preliminary questions and answers he put to the child in the record of the Court. The said contention sought by the appellant, I hold, is not a requirement of the law and therefore not within reason. The purpose for the requirement is rather meant for the trial Judge to form an opinion whether the child … possesses intelligence enough to give evidence before it.”
Reading the records of appeal, it is obvious on the face thereof that the lower Court took steps to satisfy itself and to form the opinion that the first prosecution witness possessed sufficient intelligence to give evidence and understood the duty of speaking the truth before receiving her unsworn evidence on record. The lower Court thus adequately complied with the provision of Section 209(1) of the Evidence Act in receiving the evidence of the first prosecution witness. The records of appeal show that the Appellant was represented by Counsel in the lower Court throughout the trial and at no time, and not even in the final written address, did the Counsel contest or challenge the opinion formed by the lower Court that the witness possessed sufficient intelligence to give evidence and understood the duty of speaking the truth. The contention of the Counsel to the Appellant on the point in this appeal is misconceived. . Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RATIO

PLEADINGS: THE DEFENCE OF ALIBI

Alibi is Latin for “elsewhere” It also means the fact or state of having been elsewhere when an offence was committed. The defence of alibi is based on the physical impossibility of the accused being guilty by placing him in another location at the relevant time. In essence, alibi, as a defence, simply put, seeks to establish that at all times material to the commission of the offence, the accused person was nowhere near the locus of the crime, and ordinarily therefore he could not be expected to be involved in the physical execution of the crime alleged. It is trite that once the defence is properly raised by the accused person during investigations, it is the duty of the Police to investigate it. The legal principles governing the treatment of the defence of alibi have been stated and restated by the Supreme Court in several case law authorities, the latest of which include Dage Vs State (2019) 12 NWLR (Pt. 1686) 204, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Opeyemi Vs State (2019) 17, NWLR (Pt 1702) 403, Sale Vs State (2020) 1 NWLR (Pt 1705) 205, Ugwu Vs State (2020) LPELR 49375(SC). But perhaps one of the best expose of the principles was that made by Achike, JSC, in the case of Ebre Vs State (2001) 12 NWLR (Pt 728) 617, where His Lordship stated:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabouts on the crucial day the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably, be capable of investigation by the Police should they wish to do so. A fair minded tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused…
Conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make-believe of plea of that defence, and which are completely devoid of material facts worthy of investigation, the Police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi. For example, where the accused person in his extra-judicial statement stated that either that ‘he was not in town on that day’ or that ‘he traveled to a neighbouring town or village – Awka’, and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.” It is settled law that the application of laid down legal principles in a case must take into consideration the peculiar facts and circumstances of the case; cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC). The Appellant predicated his defence of alibi on the contents of the extra judicial statement which he said he made to the Police upon his arrest. The statement, tendered by the Appellant as Exhibit C, read, in the material part, thus:
“… On that same 24th of August, 2012, I was at the General Hospital at Kuroda for a medical certificate, I was asked to provide including my credentials following an aptitude test conducted with Integrated Corporate Services, Behind Trade Fare Complex Zoo Road. My money could not cover the test bill, I then left for Skye Bank Ibrahim Taiwo Road to get some money, getting back they said they have close for the day because is Friday. I gave the money and was asked to come back for the reporters of the result have gone. I then left for Beirut Road at Mai Gwado Communication to purchase a cell phone branded Q9 and also join the queue to register the line at same Beirut Road. After ward it was after One already, I proceed to a cousin of mine house Hajiya Hadiza Bala Faggae and only met her house help. From their I proceeded to Faggae Central Mosque to perform Juma’at prayers which commences at 2.16pm after the prayers I proceeded to Saye Quarters and branched at a friend shop and plug the phone for the period of not less than 3 hours as specified by the makers. I came back home at night on that 24th August, 2012 and was not around the area at any of the time they mentioned …”
Now, it is commonsensical that the particulars of a defence of alibi must be considered vis-à-vis the nature of the crime committed and the time the crime was said to have been committed. The offence for which the Appellant was arraigned in Court is rape. The allegation against the Appellant was that he lured the first prosecution witness with lollipop into his room and had sexual intercourse with her. It was not the case of the Respondent that the Appellant spent a whole day or even hours of the day to commit the offence. Thus, the particulars of the alibi presented by the Appellant must be considered against the date and the specific time the offence was said to have been committed. In the charge preferred against the Appellant, he was said to have committed the offence at about 4pm on the 24th of August, 2012. The records of appeal shows that neither at the time of the reading of the charge nor at anytime throughout the trial did the Appellant or his Counsel protest the particulars of the charge. The records show that the second and fourth prosecution witnesses testified that the incident occurred in the afternoon hours of the day. Now, where did the Appellant say in Exhibit C that he was in the afternoon hours of the 24th of August, 2012? The Appellant stated that he went to Faggae Central Mosque after 1pm to perform Juma’at prayers and which commenced at 2.16pm and that after the prayers he proceeded to the shop of a friend in Saye Quarters where he charged his phone for three hours and he got home in the night of the day. The Appellant did not mention the name and address of anyone he met or who saw him in the Faggae Central Mosque and neither did he mention the name and address of the friend whose shop he said he went in Saye Quarters. The account given by the Appellant of his whereabouts in the afternoon hours of the 24th of August, 2012 when the offence of rape was committed was porous, vague and devoid of material facts and was not worthy of investigation by the Police. In rejecting the defence of alibi, the lower Court stated in the judgment thus:
“On the alibi raised by the accused person in his defence, the alibi could not be investigated because the accused did not give any particulars that will help the Prosecution in investigating his alibi. He did not give the address and the names of the persons that were with him in all the public places he stated he was there. I therefore find the alibi raised by the accused in his defence can not be a defence to this charge. The accused further failed to give account of his where about from the time he left the Fagge Juma’a Mosque to Saye Quarters and finally to his house. I therefore hold the accused has not defended the case against him with any concrete defence.” This finding of the lower Court is unassailable and cannot be faulted on the facts and circumstance of this case. Additionally, the lower Court found that the evidence of the first, second and fourth prosecution witnesses were cogent, direct and credible and that they located the Appellant at the scene of the crime as the culprit. It is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya Vs State (2010) 3 NWLR (Pt. 1181) 423, Afolalu Vs State (2010) 16 NWLR (Pt. 1220) 584 and Sunday Vs State (2010) 18 NWLR (Pt. 1224) 223. The contention of the Appellant on the third issue for determination fails and the issue for determination is resolved in favour of the Respondent. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

UMAR HARUNA APPELANT(S)

And

KANO STATE RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Charge No K/36C/2013 by Honorable Justice Aisha R. D. Mohammed on the 5th of May, 2014.

The Appellant was charged with rape under the provisions of Section 283 of the Penal Code of Kano State. The Appellant was alleged to have, on or about the 24th of August, 2012 at about 1600 hours, lured one Halima Ali Shuaibu, aged four and a half years, with sweets, pop-up lollipop, into his room and forcefully had sexual intercourse with her. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called five witnesses and tendered one exhibit in proof of its case and the Appellant testified as the sole defence witness and he tendered two exhibits in his defence.

At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to fourteen years imprisonment and a fine of N50,000.00, with a directive that should the Appellant

fail to pay the fine, he shall serve an additional term of four years imprisonment. The Appellant was dissatisfied with the judgment and pursuant to an order of extension of time to appeal granted in his favour by this Court on the 23rd of March, 2015, he caused a notice of appeal dated the 30th of March, 2015 and containing ten grounds of appeal to be filed. The notice of appeal has been amended and further amended by this Court at the behest of the Appellant. The extant notice of appeal is the Further Amended Notice of Appeal dated the 25th of April, 2019 containing eight grounds of appeal and which was deemed properly filed by this Court on the 3rd of June, 2020.

The first ground on the notice of appeal is against a Ruling of the lower Court refusing the request of the Appellant for an adjournment in the course of the trial and which was delivered on the 20th of February, 2014. The records of appeal show that by a motion on notice dated the 28th of February, 2017 and filed on the 2nd of March, 2017, the Appellant sought for the trinity prayers to appeal against the said Ruling. The records show that the motion was heard and granted by this Court on the

18th of October, 2017 and that the Appellant filed a notice of appeal against the Ruling on the 25th of October, 2017. The records show that Appellant thereafter filed a motion dated the 2nd of March, 2018 on the 6th of March, 2018 seeking to amend the notice of appeal against the final judgment to, inter alia, incorporate the ground of appeal against the Ruling into it. The records show that the motion was taken and granted on the 23rd of May, 2018 by this Court and pursuant to which an amended notice of appeal filed on the 6th of March, 2018 was deemed properly filed. It was this notice of appeal that was further amended on the 3rd of June, 2020.

In arguing the appeal, Counsel to the Appellant filed a further amended brief of arguments dated the 3rd of May, 2019 on the 6th of May, 2019 and which was deemed properly filed by this Court 3rd of June, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 16th of June, 2020 on the same date and wherein he raised and argued a notice of preliminary objection challenging the competence of the appeal. Counsel to the Appellant filed a Reply brief of arguments dated the 22nd of June, 2020.

The records show that the Appellant also filed an affidavit deposed to on the 16th of December, 2016 challenging the contents of some portions of the records of appeal and to which the Respondent caused a counter affidavit to be filed on the 5th of January, 2017. At the hearing of the appeal, Counsel to the parties argued the notice of preliminary objection of the Respondent by adopting the arguments contained in their respective briefs of arguments thereon, and they subsequently relied on and adopted the arguments on the substantive appeal contained in their respective briefs of arguments as their oral submissions on the appeal.

This Court will naturally commence its deliberations in the appeal from the notice of preliminary objection of the Respondent. The preliminary objection of the Respondent to the appeal was predicated on the alleged incompetence of the grounds of the appeal of the Appellant. The Respondent contended that the grounds of appeal were incompetent for two reasons; namely: (i) that they complained of errors of law, but the Appellant failed to quote the passages of the judgment where the errors were alleged to have occurred; and

(ii) that they were at best grounds of mixed law and fact and the Appellant failed to seek for and obtain the leave of Court before filing them. This Court will deal with the contentions seriatim.

In arguing the first ground of the alleged incompetence of the grounds of appeal, Counsel to the Respondent stated that the failure of the Appellant to quote the relevant passages of the errors of law in the judgment complained about in the grounds of appeal rendered them incompetent and he referred to the case of Bank of the North Vs Bello (2000) 7 NWLR (Pt 664) 244 as authority for the submission. Counsel also referred to the case of Okwuagbala Vs Ikwueme, but he only referred to the year it was reported without the other citations. The position of the Courts is that where a Counsel fails to supply the full or correct citation of a case law authority he relies on, it will be assumed that the case does not exist. The Supreme Court, per Muntaka-Coomassie, JSC, made the point in Ogudo Vs The State (2011) LPELR 860(SC) thus:
“Counsel has a duty to properly cite the cases they seek to rely on in their briefs of arguments in order to assist the Court.

A situation where a Counsel cites a case and put a wrong citation, the assumption is simple, the case does not exist, and such an act is condemnable. Decisions of the Courts particularly decisions of this Court are case laws under the principle of stare decisis are binding on this Court and all other Courts below, hence in citing his case, Counsel have to ensure accuracy.”
This Court will thus completely ignore the case of Okwuagbala Vs Ikwueme cited by the Counsel to the Respondent.

In his response to the first ground of alleged incompetence of the grounds of appeal, Counsel to the Appellant stated it was not the law that failure to quote the passage in the judgment where an alleged error occurred rendered a ground of appeal incompetent and that all that is required is that the ground of appeal be succinct and bring out the complaint without any ambiguity or strain and he referred to the cases of Kano Textile Printer Plc Vs Gloede & Haff Nigeria Ltd (2002) 2 NWLR (Pt 751) 420 and Okon Vs Ekanem (2002) 15 NWLR (Pt 789) 106. Counsel stated that the case ofBank of the North Ltd Vs Bello supra relied upon by Counsel to the Appellant does not

support the position canvassed by Counsel and that all the grounds of appeal in this appeal are succinct and they brought out the complaints of the Appellant against the judgment of the lower Court without any ambiguity and are, as such, competent.

The nature and contents of a notice of appeal and grounds of appeal are provided for in Order 7 of Court of Appeal Rules, 2016. Order 7 Rule 2(2) provides that where a ground of appeal alleges a misdirection or error in law, the particulars and the nature or error shall be clearly stated, while Order 7 Rule 2(3) reads that the notice of appeal shall set forth the grounds of appeal concisely under distinct heads without any argument or narrative. The Courts have held that by these provisions, grounds of appeal are expected to be concise, precise and distinct and must not contain legal arguments, be unnecessarily lengthy, elaborate or contain narratives and must deal with the real complaint upon which the ground is predicated – Guda Vs Kitta (1999) 12 NWLR (Pt 629) 21, Coker Vs United Bank for Africa Plc (1997) 2 NWR (Pt 490) 641, Okudo Vs Inspector General of Police (1998) 1 NWLR (Pt 533) 335,

Nwabueze Vs Nwora (2005) 8 NWLR (Pt 926) 1, Adekanye Vs Grand Services Ltd (2007) All FWLR (Pt 387) 855.
It is obvious that the provisions of the Order 7 of the Court of Appeal Rules 2016, as interpreted by the Courts, do not admit of quotation of passages of judgment in or as part of grounds of appeal since such quotations would not be concise, distinct and precise, but rather, would be narrative of the rendition of the judgment appealed against – Ikosi Industries Ltd Vs Lagos State Government (2017) LPELR 41867(CA), A. A. Atta Nigeria Ltd Vs Conoil Plc (2018) LPELR 44705(CA), Inspector General of Police Vs Jafaru (2018) LPELR 47361(CA). Thus, while it might have been a requirement that passages containing alleged errors of law should be quoted as part of a ground of appeal complaining of errors in law, this is no longer the law. This point was made a long time ago by this Court in the cases of Funduk Engineering Ltd Vs McArthur (1995) 4 NWLR (Pt 392) 640 and Ilori Vs Tella (2006) 18 NWLR (Pt 1011) 267 and it was reiterated by the Supreme Court in the cases of BASF Nigeria Ltd Vs Faith Enterprises Ltd (2010) 4 NWLR (Pt 1183) 104 and

Ports and Cargo Handlings Services Co. Ltd & Ors Vs Migfo (Nig) Ltd & Anor (2012) 18 NWLR (Pt 1333) 555.
The failure or omission to quote passages of the judgment in or as part of the grounds of appeal thus has nothing to do with the competence of the grounds of appeal and is not fatal to the grounds. All that is required is that the complaint of an appellant in a ground of appeal must not be beclouded, ambiguous or confusing and once the complaint is clear, identifiable and can be reasonably elicited, a ground of appeal will be held to be viable and competent – Thor Ltd Vs First City Merchant Bank Ltd (1997) NWLR (Pt 479) 35, Central Bank of Nigeria Vs Okojie (2002) 8 NWLR (Pt 768) 48, Garuba Vs Kwara Investment Co. Ltd (2005) 1 SCNJ 290, Awusa Vs Nigerian Army (2018) LPELR 44377(SC). It was not the case of the Respondent in this appeal that the complaints of the Appellant in the grounds of appeal were unclear, vague and not discernible. The first contention of the Respondent on the notice of preliminary objection was not well thought out.

On the second ground of the alleged incompetence of the grounds of appeal, Counsel referred to the provisions of

Sections 241(1) and 242(1) of the 1999 Constitution (as amended) and stated that by these provisions appeals from the High Court to the Court of Appeal are only as of right where they are on grounds of law alone and that where they are on grounds of mixed law and facts, leave of Court must be applied for and obtained as a condition precedent to the competence of the appeal. Counsel stated that failure to obtain leave to appeal, where leave to appeal is required, as in the present appeal, robs this Court of jurisdiction to entertain the appeal and he referred to the cases of Shaka Vs Salisu (1996) 2 NWLR (Pt 428) 28, Ajibade Vs Pedro (1992) 5 NWLR (Pt 241) 257 and Nikagbate Vs Opaye (2018) 3 SCM 138, amongst others. Counsel invited the Court to scrutinize the grounds of appeal and their particulars in accordance with the principles on classification of grounds of appeal laid down in the cases of Ogbechie Vs Onochie (No 1) (1986) 2 NWLR (Pt 23) 48, Kashadadi Vs Sarkin Noma (2007) 6 SC (Pt 1) 68 and Nikagbate Vs Opaye supra and stated that the Court will find that each of eight grounds of appeal on the Appellant’s notice of appeal are grounds of mixed law and fact.

Counsel stated that the Appellant did not obtain the leave of either the lower Court or of this Court before filing the appeal and that as such the appeal was incompetent.

In response, Counsel to the Appellant stated that the present appeal was against the final judgment of the High Court of Kano State sitting in the first instance and that appeal against such decisions lie as of right without need for leave to appeal and he referred to the provisions of Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 and the cases of First Fuels Limited Vs Nigerian National Petroleum Corporation (2007) 2 NWLR (Pt. 1018) 276 and Welle Vs Bogunjoko (2007) 6 NWLR (Pt. 1029) 125. Counsel conceded that the first ground of appeal was against an interlocutory Ruling of the lower Court and stated that the Appellant sought for and obtained the leave of this Court to appeal against the Ruling and to incorporate the ground of appeal against it in the present appeal. Counsel stated that all the grounds of appeal were thus competent and regular and that the notice of preliminary objection was misconceived and should be dismissed.

appeal are on mixed law and facts or facts alone – Globestar Engineering Company (Nig) Ltd Vs Malle Holdings Ltd (1999) 10 NWLR (Pt 622) 271, Ahamefule Vs Imperial Medical Center (2005) 5 NWLR (Pt 917) 51, NIC Vs Acen Insurance Co Ltd (2007) 6 NWLR (Pt 1031) 589, Kalagbor Vs General Oil Ltd (2008) All FWLR (Pt 418) 303.

Reading through the notice of appeal, it is obvious that the complaints of the Appellant in Grounds Two to Eight thereof are directed at the final judgment of the High Court of Kano State, sitting as a Court of first instance, and as such the Appellant required no leave to file those grounds of appeal, whether or not the grounds of appeal are on mixed law and facts or facts alone. The first ground of appeal was directed at an interlocutory decision of the lower Court, the Ruling refusing the request of the Appellant for an adjournment, and a look through the ground of appeal shows that it is one of mixed law and facts and the Appellant required leave of this Court to file it. The records of the Court, as recanted in the earlier part of this judgment, show that the Appellant sought for and was granted leave by this Court to file the

ground of appeal and to incorporate same in this appeal against the final judgment. The Appellant thus fulfilled all the prerequisites for including the ground of appeal in the present appeal. Therefore, the eight grounds of appeal of the Appellant are competent and the second contention of the Respondent on the preliminary objection was also not well founded.

The preliminary objection of the Respondent is totally misconceived and same is hereby dismissed. This takes us to the substantive appeal.

Counsel to the Appellant distilled three issues for determination in this appeal and these are:
i. Whether the refusal of the trial Judge to adjourn for the Appellant to call his witnesses denied him a fair trial?
ii. Whether the learned trial Judge was right to have placed reliance on the evidence of PW1, PW2 and PW4 to convict the Appellant when the evidences were unreliable?
iii. Whether the learned trial Judge was right to have refused the defence of alibi put up by the Appellant and therefore convicted him?

On his part, Counsel to the Respondent also distilled three issues for determination, but couched them differently from those

distilled by Counsel to the Appellant. The issues for determination are:
i. Whether the Appellant was not in fact afforded the opportunity of a hearing and whether the order of the lower Court refusing the further adjournment and closing the case for the defence had the effect of finally shutting out the Appellant from presenting his defence.
ii. Whether the Appellant’s defence of alibi was properly considered and rightly rejected by the lower Court.
iii. Whether the prosecution proved the allegation of rape beyond reasonable doubt against the Appellant having regards to the facts and circumstances of this case.

A reading of the issues for determination formulated by Counsel to the parties show that though they have some similarities, there are marked differences between them. This appeal is that of the Appellant and he is the person better placed to identify what his grouses are against the judgment of the lower Court. This Court will thus adopt the issues for determination as formulated by Counsel to the Appellant. The three issues for determination will be considered seriatim and the arguments of Counsel to the Respondent relevant

to the issues for determination shall be considered under each head.

Issue One
Whether the refusal of the trial Judge to adjourn for the Appellant to call his witnesses denied him a fair trial?

In arguing the issue for determination, Counsel to the Appellant noted that sequel to the closure of the case of the Respondent, the Appellant opened his defence on the same day and he led evidence and was cross-examined and the matter was adjourned by the lower Court to the 20th of February, 2014 for continuation of defence to enable the Appellant call additional witnesses, on the request of Counsel to the Appellant, and the lower Court ordered the issuance of witness summons to the additional witnesses the Appellant desired to call. Counsel stated that when the matter came up on the 20th of February, 2014, Counsel to the Appellant applied for a further adjournment to call his witnesses because they were not present in Court and because he travelled and had just returned, but that the lower Court refused the request and closed the defence of the Appellant and adjourned for adoption of written addresses.

Counsel stated that the refusal of the lower

Court to grant the further adjournment denied the Appellant the opportunity to call his witnesses and was unfair and occasioned a miscarriage of justice. Counsel stated that the request for adjournment was the first and only one request for adjournment made by the Appellant and that the lower Court had in the course of the presentation of the case of the Respondent granted three adjournments at the request of Counsel to the Respondent and that as such the lower Court did not exercise its discretion fairly in refusing the adjournment sought by the Appellant. Counsel stated that there was nothing on record showing that the lower Court satisfied itself that the witness summons it ordered to be issued were indeed issued and served on the witnesses of the Appellant before it proceeded to refuse the request for adjournment.

Counsel noted that the grant or refusal of adjournment is a matter within the discretion of the Court and the discretion should be exercised judicially and judiciously based on the facts and circumstances of each case, with the Court bearing in mind the need to do justice to the parties. Counsel also noted that

Section 33(1) of the 1999 Constitution requires that matters be determined within a reasonable time, but stated that where the requirement of fair hearing outweighs the necessity for speedy trial, a Judge should not hesitate to grant a request for adjournment and he referred to the cases of Salu Vs Egeibon (1994) 6 NWLR (Pt 348) 23 and Niger Benue Transport Company Limited Vs Egele (2010) 8 NWLR (Pt 1196) 238. Counsel stated that an appellate Court has the power and duty to interfere with the exercise of discretion by a lower Court where such exercise of discretion defeats the rights of the parties and he referred to the case ofIjeh Vs Obi (1994) 3 NWLR (Pt 333) 288. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.

In his response, Counsel to the Respondent stated that the concept of fair hearing upon which Counsel to the Appellant predicated his arguments was not a technical doctrine but one of substance and that in each given scenario, the proper question is whether a party entitled to be heard had in fact been given an opportunity of a hearing and that where a party has been given an opportunity of being heard but fails to

utilize same, as in this case, he cannot be heard to complain and he referred to the case of Kotoye Vs CBN (1989) NWLR (Pt. 98) 419. Counsel stated that when Counsel to the Appellant sought for an adjournment of the defence to call further witnesses, he did not supply the names and addresses of the proposed witness, but nevertheless the lower Court directed that witness summons be issued to assist the Appellant to bring the witnesses to Court on the next adjourned date, but that the Appellant failed to bring the witnesses to Court.

Counsel stated that there was nothing in the records of the Court showing that, sequel to the refusal of the request for adjournment and closure of the defence, the Appellant filed a motion on notice seeking leave of the lower Court to reopen his defence and to call his proposed witnesses, as he was entitled to do under the provisions of Section 237 of the Criminal Procedure Code and Section 36(6) of the 1999 Constitution (as amended), if he was serious about calling the witnesses. Counsel stated that the records of the proceedings of the 20th of February, 2014 show that the Counsel to the Appellant did not inform the lower

Court of the names of the proposed witnesses and of the steps he took since the last adjourned to ensure the attendance of the witnesses in Court and that in these circumstances, it cannot be rightly contended that the lower Court exercised its discretion in a manner that defeated the rights of the Appellant.

Counsel stated that the principles governing the grant of an adjournment in criminal trials differ from those in civil matters and that in criminal trials, a trial Court is enjoined to refuse an application for adjournment where it is manifest that the application was only made for the purpose of delaying the proceedings. Counsel stated that an accused person seeking for an adjournment to call witnesses must show that he took timely steps to have the witnesses at the trial to give evidence and that (i) the witness sought to be called is material for his defence; (ii) he has not been guilty of laches or neglect in procuring the attendance of the witness in Court; and (iii) that there was reasonable expectation of his procuring the attendance of the witness in Court at the future time the matter will be adjourned to and he referred to the case of

Yanor Vs State (1965) All NLR 199. Counsel stated that it is clear that Counsel to the Appellant failed to satisfy any of these requirements in the application for adjournment he made on the 20th of February, 2014 and that the Appellant cannot thus legitimately complain about the refusal of the request for adjournment by the lower Court. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.

The complaint of the Appellant under this issue for determination is against the Ruling of the lower Court refusing the request for adjournment made by the Appellant in the course of trial for a further date to call additional witnesses in support of his defence. The records of the lower Court show that when the matter came up on the 5th of February, 2014, the Appellant testified in his defence and was cross examined and thereafter his Counsel sought for an adjournment to call further evidence. The records show that the request for adjournment was granted and the matter was by agreement of the parties adjourned to the 20th of February, 2014 for further defence and the lower Court directed the issuance of witness summons to assist the

Appellant in bringing his proposed witnesses to Court. On the 20th of February, 2014, the following transpired in Court:
“Adamu: The matter was fixed for continuation of defence. I can(sic) go on with the case as my witnesses are not in Court. I travelled and came back as such I need an adjournment.
Court: I can’t adjourn the matter because you are fully aware that the case is for continuation of defence and you were in Court on the last adjourned date. You took today’s date as such your failure to bring your witnesses today means you have no witness to bring. I therefore close the case for the defence. …”

This is the Ruling that the Appellant is complaining about. Now, the law, by a long line of cases, is, and has always been, that adjournment of cases fixed for hearing are not obtainable as a matter of course or as of right, but may be granted or refused at the discretion of the Court – African Continental Bank Ltd Vs Agbayim (1960) SCNLR 57. In Ilona Vs Dei (1971) LPELR 1495(SC), Udo Udoma, JSC, stated that “the question of whether or not to grant an adjournment is a matter in the discretion of the

Court.” In Odusote Vs Odusote (1971) All NLR 219, Udoma, JSC, again stated that “the question of adjournment is a matter in the discretion of the Court concerned and must depend on the facts and circumstances of each case.” In Alalade Vs Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975) LPELR 405(SC), Coker, JSC opined that “it is never in dispute that the granting or refusal of an application for adjournment rests completely with the Tribunal or Court before which, the Counsel appears.” In Obomhense Vs Erhahon (1993) 7 SCNJ 479, Karibi-Whyte, JSC, reiterated that “the grant of adjournment in a cause is a matter entirely within the discretionary jurisdiction of the Court which it can exercise in accordance with the particular facts and circumstances of the case.” In Salu Vs Egeibon (1994) 6 NWLR (Pt 348) 23, Adio, JSC, reaffirmed that “the grant or refusal of an application for an adjournment involves an exercise of judicial discretion.”
It is elementary that discretion is a very fluid situation and when a Court is invited to exercise its discretion

one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt. 1151) 106.
The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his

favor – Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429. In Nwadiogbu Vs Anambra/Imo River Basin Development Authority (2010) 19 NWLR (Pt 1226) 364, the Supreme Court stated at pages 381- 382 that:
“When a case has been fixed for hearing, the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard.”
It is apparent from the Ruling reproduced above that the lower Court found that the Counsel to the Appellant did not place sufficient materials before it to warrant it exercising its discretion in favour of the Appellant’s request for an adjournment of the hearing and it thus refused the application for adjournment. The Courts have held that where a Court refuses

to exercise its discretion in favour of an applicant on the ground of insufficient materials, it is a legitimate reason for refusal of exercise of discretion – Williams Vs Mokwe (2005) 14 NWLR (Pt 945) 249, Federal Housing Authority Vs Kalejaiye (2010) 19 NWLR (Pt 1226) 147, Olatubosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt. 1319) 200, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 505.
The law is that where a Court gives legitimate, sufficient and correct reasons for exercise of discretion, and that the exercise is not based on its whims and fancies, it is presumed that it acted judicially and judiciously – Divine Ideas Ltd Vs Umoru (2007) LPELR 9009(CA), Nwaenang Vs Ndarake (2013) LPELR 20720(CA). To succeed on his complaint in this appeal therefore, the onus is on the Appellant to show that the reasons given by the lower Court for failing to exercise its discretion in favour of his request for adjournment were not appropriate on the peculiar facts and circumstances of this case and that the exercise of discretion by the lower Court was wrongful and requires the interference of this Court –

Chijoke Vs Soetan (2006) 10 NWLR (Pt 990) 179, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt 1084) 612.
The contention of the Counsel to the Appellant in this appeal is that the refusal of the adjournment was unfair and occasioned a miscarriage of justice because that was the first and only one request for adjournment made by the Appellant and that the lower Court had in the course of the presentation of the case of the Respondent granted three adjournments at the request of Counsel to the Respondent and that as such the lower Court did not exercise its discretion fairly in refusing the adjournment sought by the Appellant. In other words, Counsel to the Appellant did not contend that the reason of insufficient materials given by the lower Court for refusing to exercise its discretion in favour of the request for adjournment was incorrect; his case was that since it was the first request for adjournment by the Appellant and lower Court had granted the Respondent three adjournments in the past, the lower Court ought to have granted the Appellant the adjournment sought as of right, irrespective of whether or not he gave good reasons there for.

Unfortunately for Counsel to the Appellant, the law does not support the position canvassed by him. No party has a right to an adjournment, whether it is a first adjournment or tenth adjournment, and whether not the Court had earlier granted a request for adjournment in favour of the opposing party. Adjournment is not granted gratis, every adjournment must be earned by the party requesting for it – Olori Motors & Co Ltd Vs Union Bank of Nigeria Plc (1998) 6 NWLR (Pt 554) 493, Uzowulu Vs Akpor (2015) All FWLR (Pt 763) 1954. A Court does not grant adjournment simply because a party asks for it and the fact that a Court had granted an adjournment in favour of one party does not mean it must automatically grant the request of the other party – Solanke Vs Ajibola (1968) SCNLR 92, Anyafulu Vs Agazie (2004) LPELR 5944(CA), The City Waiters Ltd Vs Adio (2015) All FWLR (795) 368. Exercise of discretion must depend on the facts and particular circumstances of each application – Odusote Vs Odusote supra, Obomhense Vs Erhahon supra, Salu Vs Egeibon supra.
This same attitude of “adjournment as of right” was displayed by

Counsel to the Appellant before the lower Court in his request for adjournment when he demanded for an adjournment instead of appealing to the discretionary jurisdiction of the lower Court for one. The words used by Counsel were, “I need an adjournment”. It is trite law that the Court is not at the beck and call of any of the parties to do as they wish and must, should always, be in control of proceedings before it – Fagbule Vs Rodrigues (2002) 7 NWLR (Pt 765) 188, Executive Governor of Osun State Vs Folorunsho (2014) LPELR 23088(CA). In Ononghen Vs Federal Republic of Nigeria (2019) LPELR 47689(CA), this Court made the point that “a Judge of a Court or Tribunal is the master of the proceedings. He is in charge of how and when the matters before him are heard. That is all within his prerogative. No one can remove that from the Court or Tribunal.”
Looking at the proceedings of the lower Court of the 20th of February, 2014, it is obvious that Counsel to the Appellant gave no information to the lower Court on the witnesses he proposed to call, he did not state the names of the witnesses and the nature and materiality of the

evidence they were going to give and he offered no explanation for their absence from Court on the day and of their whereabouts and of the steps he intended to take to get them to attend Court on the next date. These are the requirements that an accused person seeking for adjournment of trial to call witnesses in his defence must meet – Omega Vs State (1964) All NLR 373, Yanor Vs State (1965) All NLR 199 cited by Counsel to the Respondent. The lower Court was justified in the circumstances to conclude that the witnesses were mere make-believe and did not really exist and to refuse the request for an adjournment to call non-existent witnesses. In Omega Vs State supra, the Supreme Court, per Coker, JSC, made point thus:
“An accused person is undoubtedly entitled to reserve his defence until the appropriate stage of his trial, but if he intends to call witnesses he must take timely steps to have them at his trial ready to give evidence at that stage-which means that he must summon them in advance, and that he cannot complain if, seeing that he has not summoned them, the trial Court refuses to grant him an adjournment for the purpose of summoning

witnesses when he is called upon for his defence. In this case the appellant would not give the names of his proposed witnesses to the committing Magistrate; at the least he should have summoned his witnesses when he had notice of trial. He had plenty of time even when he saw his counsel before the trial began; but neither he nor his counsel asked for any witnesses to be summoned, and it becomes an abuse of language to say that the trial Court is to blame for not granting an adjournment when the true blame lies on the appellant owing to his own neglect… The learned trial Judge acted rightly in our view in refusing to delay the trial further by acceding to the appellant’s application for adjournment in those circumstances.
We cannot subscribe to the view that a Court of trial should adjourn the hearing at the instance of any party (be it the accused or the prosecution) when it is manifest that the application for such adjournment was made only for the purpose of delaying the proceedings.”
It is trite law that an appellate will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a

wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere – Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, Okeke Vs Oruh (1999) 6 NWLR (Pt. 606) 175. In Alsthom S. A. Vs Saraki (2000) 14 NWLR (Pt. 687) 415, Akintan, JSC, stated that:
“It is settled law that adjournments of cases fixed for hearing are not obtained as a matter of course. They may be granted or refused at the discretion of the Court. The exercise of such discretion, however, is a judicial act which must be premised on well established legal principles. It is therefore an act against which an aggrieved party may lodge an appeal. To succeed in such an appeal, the appellant must satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration

and that it is manifest that the order would work injustice to the appellant.”
Counsel to the Appellant did not fault the reason given by lower Court for refusing the request for adjournment and did not display before this Court any injustice suffered by the Appellant by reason of the refusal of the request for adjournment. The Appellant has not given this Court any reason to interfere with the exercise of discretion by the lower Court. The first issue for determination is resolved in favour of the Respondent.

Issue Two
Whether the learned trial Judge was right to have placed reliance on the evidence of PW1, PW2 and PW4 to convict the Appellant when the evidences were unreliable?

In arguing the issue for determination, Counsel stated that the testimonies of the first, second and fourth prosecution witnesses that the lower Court relied upon in convicting the Appellant were manifestly unreliable and ought not to have been relied on to sustain the conviction. Counsel noted that the first prosecution witness was a child of five years and who from answers to question put to her by the lower Court did not understand the nature of an oath,

and stated that though the witness could give unsworn testimony in such circumstances, this was on the conditions that she possessed sufficient intelligence to justify the reception of her evidence and that she understood the duty of speaking the truth and he referred to the provisions of Sections 175(1) and 209(1) of the Evidence Act. Counsel stated that the lower Court was duty bound to carry out tests showing that the witness passed the two conditions before it can receive her unsworn testimony into evidence and he referred to and quoted from the case of Mbele Vs The State (1990) 4 NWLR (Pt. 145) 484.

Counsel stated that the records of Court must show that the lower Court carried out a preliminary investigation to determine that the first prosecution witness possessed sufficient intelligence to justify the reception of her evidence and that she understood the duty of speaking the truth but that in the present case there was no such evidence on the records. Counsel stated that the questions posed by the lower Court and answered by the witness on the records were not sufficient to satisfy the two requirements and that the procedure stipulated in

Section 209(1) of the Evidence Act must be strictly followed and he referred to and quoted from the case of Sambo Vs The State (1993) 6 NWLR (Pt 300) 399. Counsel stated that the preliminary test conducted by the lower Court, and which the lower Court admitted in the judgment, was only to determine if the witness possessed sufficient intelligence to justify the reception of her evidence, but not to determine that she understood the duty of speaking the truth and that as such her evidence was worthless and he again referred to the case of Sambo Vs The State supra.

Counsel stated that testimony of the first prosecution witness, being the unsworn evidence of a child, required corroboration by the provisions of Section 209(3) of the Evidence Act and that since the evidence was worthless, it was not capable of being corroborated by the testimonies of the second and fourth prosecution witnesses and by Exhibit A as found by the lower Court and he referred to the cases of Sambo Vs The State supra and Agenu Vs State (1992) 7 NWLR (Pt. 256) 749. Further, Counsel stated that evidence of the first prosecution witness was also not reliable because it appeared clearly from the

records of proceedings that the witness did not understand the English language, yet her testimony was taken without the use of an interpreter. Counsel referred to the contents of the affidavit deposed to by the Appellant to challenge the records of the lower Court and stated that it was obvious from the contents of the affidavit that the lower Court assisted the witness to testify in the manner recorded in the records of proceedings even when it appeared that she did not possess sufficient intelligence to warrant the reception of her testimony.

Counsel stated that the evidence of the second and fourth prosecution witnesses that they saw blood coming out of the private part of the first prosecution witness did not link the Appellant to the commission of the crime and also that their further evidence that the first prosecution witness told them that it was the Appellant that committed the offence cannot be relied on as it has been shown that the first prosecution witness who so allegedly told them did not possess sufficient intelligence to justify the reception of her evidence and did not understand the duty of speaking the truth and which made her

evidence worthless. Counsel stated that the evidence of the second and fourth prosecution witnesses that when both of them and the wife of the second prosecution witness accosted the Appellant in the presence of one Dauda, the first prosecution witness identified the Appellant as the culprit and also the evidence of the second prosecution witness that the first prosecution witness again identified the Appellant as the culprit in the presence of neighbors who had gathered amounted to hearsay evidence in the face of the worthlessness of the evidence of the first prosecution witness and he referred to the cases of Masen Vs The State (2010) 3 NWLR (Pt 1181) 25 and Ahmed Vs State (1999) 7 NWLR (Pt. 612) 641.

Counsel wondered why the Respondent did not call more witnesses such as the neighbors who were said to be present when the first prosecution witness identified the Appellant as the culprit. Counsel stated that there was contradiction in the evidence of the second and fourth prosecution witnesses on who took the Appellant to the Police Station and who reported the matter to the Police and that this showed that they were not witnesses of truth whose

testimonies can be relied upon. Counsel stated that the second and fourth prosecution witnesses are family members of the first prosecution witness and that the second prosecution witness testified under cross-examination that there was enmity between him and the Appellant and that these ought to have made the lower Court cautious in relying on their evidence. Counsel stated that the lower Court’s reliance on the medical report, Exhibit A, as corroborative evidence was misplaced and that though the exhibit showed that the first prosecution witness was raped, it did not link the Appellant to the act and that the exhibit was not tendered by the maker and as such ought not to have been admitted in evidence and he referred to the case ofEze Vs The State (2016) All FWLR (Pt 823) 1911.

Counsel concluded his arguments by urging the Court to resolve the second issue for determination in favour of the Appellant.

In response, Counsel to the Respondent conceded that the lower Court relied on the testimonies of the first, second and fourth prosecution witnesses as well as on the medical report, Exhibit A, in finding that the Respondent proved the

essential ingredients of the offence of rape against the Appellant. Counsel stated that a read through the judgment shows that the lower Court made specific findings on the credibility and cogency of the evidence of the second and fourth prosecution witnesses before ascribing probative value to them and relying on them and that nowhere in the entire grounds of appeal did the Appellant contest or specifically challenge the findings of the lower Court on the credibility and cogency of the evidence of the two witnesses. Counsel stated that where the finding of a lower Court is not appealed against or contested, it remains unassailable and an appellant will be deemed to have accepted it and he relied on the cases of Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181 and Nwaogu Vs Atuma (2013) 11 NWLR (Pt 1364) 117. Counsel stated that the entire arguments of the Counsel to the Appellant questioning the credibility and cogency of the evidence of the second and fourth prosecution witnesses having not appeal against the findings of the lower Court are baseless and he referred to the case of Awote Vs Owodunni (1987) 5 SC 1.

On the issue of contradictions in the evidence of the second and fourth prosecution witnesses on who took the Appellant to the Police Station and who reported the matter to the Police, Counsel defined what constitutes contradiction and stated that the chronicled contradictions were trifling inconsistencies that did not go to the root of the issue before the Court, which was whether it was the Appellant that raped the first prosecution witness. Counsel stated that contradictions will only be fatal where they are substantial, crucial and fundamental to the main question before the Court and he referred to the cases of Okonji Vs The State (1987) 1 NWLR (Pt. 52) 659 and Attah Vs The State (2010) 3 SCNJ 575.

On the procedure adopted by the lower Court in receiving the evidence of the first prosecution witness, Counsel reproduced the provision of Section 209(1) of the Evidence Act 2011, the applicable law to the present case, and stated that by the provision, the duty incumbent on the lower Court before receiving the evidence of the witness was to form an opinion that she possessed sufficient intelligence to justify the reception of her evidence. Counsel stated that the

arguments of Counsel to the Appellant that the lower Court must first conduct two levels of preliminary tests on the witness and record the questions asked the witness and the answers in the record of proceedings before it can show compliance with the provision amounts to reading extraneous words into the provision of Section 209(1) of the Evidence Act and that that was not the intention of the law makers. Counsel traversed through the dictionary for the definition of the words “opinion of the Court” and referred to the case of Okoye Vs State (1972) 12 SC 115 where the Supreme Court interpreted a similar provision in asserting that there was no duty on the lower Court to conduct a preliminary inquiry and record it in order to satisfy the provisions of Section 209(1) of the Evidence Act. Counsel stated that the facts and the law relied upon by the Supreme Court in the case of Sambo Vs State supra cited by Counsel to the Appellant were different and distinguishable from those in this case and he proceeded to distinguish them.

On the challenge mounted by the Appellant against the records of the lower Court by his affidavit of challenge, Counsel

stated that Section 168 of the Evidence Act raises a strong presumption in favour of the records and that the records of the proceedings at the trial are deemed to have been correctly taken by the lower Court and that the onus was on the Appellant to debunk the presumption. Counsel stated that the affidavit of challenge filed by the Appellant cannot displace the presumption because by Section 65 of the Evidence Act the records of proceedings and the judgment delivered thereon being products of judicial acts constitute conclusive proof of contents thereof and that by Section 145(3) of the Evidence Act, such conclusive proof cannot be displaced by evidence as contained in the affidavit of the Appellant. Counsel urged the Court to disregard and discountenance the affidavit of challenge of the records filed by the Appellant.

Counsel concluded his arguments by urging the Court to resolve the second issue for determination in favour of the Respondent.

Before going on to resolve the second issue for determination as formulated and argued by Counsel to the Appellant, it is pertinent that this Court makes some preliminary comments about this case.

The Appellant was charged with rape; he was alleged to have lured one Halima Ali Shuaibu, aged four and a half years, the first prosecution witness, with sweets, pop-up lollipop, into his room and forcefully had sexual intercourse with her. The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain the charge against the Appellant were (i) that the Appellant had sexual intercourse with the victim; (ii) that the act of sexual intercourse was done without consent of the victim or that the consent, if any was obtained by fraud, force, threat intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victim was not the wife of the Appellant; (iv) that the Appellant had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not; and (v) that there was penetration – Julius Vs State (2019) LPELR 48491(CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC).

The lower Court found that the Respondent led cogent and credible evidence to prove each and every ingredient of the offence and it was on this basis that it convicted the Appellant for the offence charged. The complaint of the Appellant in this appeal is not against the entire findings of the lower Court; the Appellant is not challenging the finding of the lower Court that the first prosecution witness was raped. The Appellant quarantined his complaint within a limited and narrow compass and it is against the finding of the lower Court that he was the person who committed the act.

A read through the judgment shows that in coming to the conclusion that the Respondent led credible evidence to prove that it was the Appellant that raped the first prosecution witness, the lower Court reviewed the evidence led by the Respondent through the first to the fifth prosecution witnesses and stated thus:
“I therefore find the evidence of PW1 that the accused had sexual intercourse with her amply corroborated by the evidence of PW2, PW4 and the medical report thereby satisfying the provision of Section 209(1) and (3) of the Evidence Act 2011.

The evidence of PW2, PW4 and Exhibit A are cogent, compelling and unequivocal as to show the accused committed the offence charged. The evidence of PW1 that the accused had sexual intercourse with her though unsworn can be relied upon having been corroborated by other independent evidence. I therefore resolve the issue No. 2 of the Prosecution on whether a child of 5 years old does not understand the nature of an oath is competent enough to give unsworn evidence; in favour of the prosecution. PW1 is a competent witness and can give unsworn evidence as she possessed the required intelligence to do so.
I also find the evidence of PW1 that the accused lured her into his room, laid her down and inserted his penis into her vagina which led to her bleeding for 3 days amply corroborated by PW2, PW4 and Exhibit A which confirmed in material particular that sexual intercourse took place between the accused and PW1. Exhibit A clearly stated the absence of the hymenal membrane…”

Counsel to the Appellant argued that the reliance placed by the lower Court on the evidence of the first, second and fourth prosecution witnesses and on the medical report,

Exhibit A, in finding the Appellant guilty was wrongful. The first contention of Counsel was that the lower Court did not strictly follow the procedure laid down in Section 209(1) of the Evidence Act for the reception of the evidence of a child under the age of fourteen years in receiving the evidence of the first prosecution witness, a child of five years. Counsel stated that the records of the lower Court did not show the preliminary investigation carried out by the lower Court by which it came to the conclusion that the child possessed sufficient intelligence and understood the duty of telling the truth, before going on to receive the evidence and that this rendered the evidence of the witness worthless and he placed heavy reliance on the decision of the Supreme Court in Sambo Vs The State (1993) 6 NWLR (Pt. 300) 399.

has not attained the age of fourteen years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”
These provisions have been interpreted by the Supreme Court to mean that before receiving the evidence of a child under the age of fourteen years, the trial Court must first satisfy itself that the child has sufficient intelligence to give evidence and understands the duty of speaking the truth and that where, in the opinion of the trial Court, the child meets these requirements, the child will give unsworn testimony. It is not part of the requirement of the law that the trial Court must state on the records of proceedings the specific steps it took to satisfy itself and to form the opinion that the child possessed sufficient intelligence to give evidence and understood the duty of speaking the truth, and that it is adequate that the records of proceedings show some evidence that the lower Court took steps to form such opinion

and/or that the formation of the opinion could be reasonably inferred from the facts and circumstances of receipt of the evidence of the child – Okoye Vs The State (1972) 12 SC 115, Okon Vs State (1988) All NLR 173, Mbele Vs The State (1990) 4 NWLR (Pt 145) 484, Peter Vs The State (1997) 12 NWLR (Pt 531) 1, Dagayya Vs The State (2006) 7 NWLR (Pt. 980) 637, Idi Vs State (2018) 4 NWLR (Pt. 1610) 359, Abelegah Vs State (2018) 18 NWLR (Pt. 1650) 172.
The suggestion of Counsel to the Appellant that the test to be carried out by a trial Court to determine whether a child has sufficient intelligence to give evidence is different and must be separated from the test to determine that he understands the duty of speaking the truth is incorrect. It is one and the same test – Okon Vs The State supra, Mbele Vs The State supra. Thus, the questions asked in respect of one suffice for the other. The second test recommended in those cases is for determining whether the child understands the nature of an Oath and this is no longer a requirement under Section 209(1) of the Evidence Act. The heavy reliance placed by Counsel to the Appellant on decision of the Supreme

Court in the case of Sambo Vs The State (1993) 6 NWLR (Pt. 300) 399 was inapposite as the Supreme Court expressly modified its decision in that case in the subsequent case of Peter Vs The State (1997) 12 NWLR (Pt 531) 1. This point was made by this Court in the cases of Olatunji Vs State (2009) LPELR 8880(CA), Hassa Vs State (2012) LPELR 14358(CA), Imasuen Vs State (2015) All FWLR (Pt 765) 365, and Obi Vs State (2016) LPELR 40543(CA).
In Idi Vs State supra, the Supreme Court, per Ogunbiyi, JSC, restated the current position of the law on the subject at pages 383 to 385 thus:
“Contrary to the submission by the appellant’s counsel therefore, the law, as rightly posed by the counsel for the respondent, does not provide for the reflections of the questions and answers put by the trial Judge to the Pw1 but that Section 209(1) is asking the Court to form an opinion if Pw1 is possessed of sufficient intelligence to justify the reception of her evidence and understands the duty of speaking the truth.
By the counsel asking that the questions and answers are to be recorded in black and white, he is asking for a re-writing of the provision of the law,

which is outside his mandate. The capability test is preliminary and it enables the Court to form an opinion as to the competence of a child to testify. Technicality as is sought to play by the appellant’s counsel cannot be accommodated.
… there is no where it is made a requirement that the trial Judge must record the preliminary questions and answers he put to the child in the record of the Court. The said contention sought by the appellant, I hold, is not a requirement of the law and therefore not within reason. The purpose for the requirement is rather meant for the trial Judge to form an opinion whether the child … possesses intelligence enough to give evidence before it.”
Reading the records of appeal, it is obvious on the face thereof that the lower Court took steps to satisfy itself and to form the opinion that the first prosecution witness possessed sufficient intelligence to give evidence and understood the duty of speaking the truth before receiving her unsworn evidence on record. The lower Court thus adequately complied with the provision of Section 209(1) of the Evidence Act in receiving the evidence of the first

prosecution witness. The records of appeal show that the Appellant was represented by Counsel in the lower Court throughout the trial and at no time, and not even in the final written address, did the Counsel contest or challenge the opinion formed by the lower Court that the witness possessed sufficient intelligence to give evidence and understood the duty of speaking the truth. The contention of the Counsel to the Appellant on the point in this appeal is misconceived.

The second contention of Counsel to the Appellant against the credibility of the evidence of the first prosecution witness was that it was evident from the records of proceedings that the witness did not understand English and required an interpreter and yet her evidence was taken in English without an interpreter. Counsel predicated a large portion of his arguments on this contention of the contents of the affidavit deposed to by the Appellant on the 16th of December, 2016 challenging the records of proceedings. The records of this Court show that the records of appeal were compiled and transmitted to this Court on the 16th of July, 2015 and this Court deemed them properly compiled and

transmitted on the 27th of September, 2016. The affidavit of the Appellant challenged the contents of the Court proceedings of the 13th of November, 2013, 30th of December, 2013 and 21st of January, 2014 as recorded by the lower Court and contained in the records of appeal.

Counsel to the Appellant believing that the record of proceedings had been amended by the simple fact of the Appellant’s depositions in the affidavit of challenge, argued on the basis of the facts contained in the affidavit. With respect to Counsel to the Appellant, he was completely mistaken. The filing of an affidavit challenging records of appeal is only a means to an end and not the end in itself. It is only a first step to be taken by a party seeking to amend the records of appeal, thereafter the party is expected to file an application in the appellate Court seeking to amend the records of appeal to include the facts contained in the affidavit of challenge. Where a party fails to take the second step, the affidavit challenging the records of appeal is of no legal consequence and achieves nothing – Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145, Orok Vs Orok (2013)

LPELR 20377(CA), Obiakor Vs Okafor (2017) LPELR 43309(CA), Fingesi Vs Independent National Electoral Commission (2019) LPELR 49144(CA). In Andrew Vs Independent National Electoral Commission (2018) 9 NWLR (Pt. 1625) 507, the Supreme Court, per Akaahs, JSC, made the point thus:
“This Court has laid down the procedure to be followed where a party seeks to impugn the record of a Court. Such a party must first file an affidavit challenging the record and serve same on the Chairman of the Tribunal. The said affidavit must be independent of the motion to be filed to amend the record which motion shall be between the parties to the action only. After filing the said affidavit, it will be followed by a motion on notice setting out the prayers and particulars thereof. The Court will then exercise its discretion whether to grant the application or not…”
The Appellant in the instant case did not file an application to amend the records of appeal to include the facts contained in the affidavit challenging the records of appeal. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal

duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court – Oseni Vs Bajulu (2009) 18 NWLR (Pt. 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt. 1198) 1 and Garuba Vs Omokhodion supra, Egba Vs State (2019) 15 NWLR (Pt. 1695) 201. The law is that neither the parties nor an appellate Court can read into the records of appeal, what is not there, and/or read out of the records of appeal, what is there. An appellate Court must read the record in the exact content and interpret it – Agbareh Vs Mimra (2008) 2 MJSC 134, Oguntayo Vs Adelaja (2009) 15 NWLR (Pt. 1163) 150. An appellant cannot go outside the records of appeal and canvass what he thinks is in favour of his case, which is not in the records. Thus, no arguments or submissions in a party’s brief of arguments, however ingenious, can distort or make an iota of difference to the contents of a record of appeal – Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt. 1623) 138, Dick Vs Our and Oil Co. Ltd (2018) 14 NWLR (Pt 1638) 1 and Patrick Vs State (2018) 16 NWLR (Pt. 1645) 263. The entire arguments of Counsel to the Appellant predicated on the facts contained

in the affidavit of challenge will be discountenanced by the Court.

Looking at the records of appeal, it is correct as stated by Counsel to the Appellant that on the 13th of November, 2013, the first prosecution witness, after stating her name, her address, her age and the fact that she knew the Appellant, refused to continue speaking despite all attempts to make her speak. This necessitated the lower Court aborting her evidence and the Counsel to the Respondent suggesting that perhaps the witness required an interpreter and the lower Court adjourned the proceedings with a directive that an interpreter by produced to assist the first prosecution witness in giving evidence. The records of appeal show that on the next date the matter came up for hearing, 30th of December, 2013, the lower Court moved into Chambers to take the evidence of the first prosecution witness and that she gave her evidence in English without an interpreter and she was cross examined by Counsel to the Appellant. There is nothing on the records showing that the Appellant or his Counsel protested on any aspect of the taking of the evidence of the witness and the issue of the manner of

the taking of the evidence was not raised in final written address of Counsel to the Appellant. The records show that Appellant and his Counsel were comfortable with the way and manner the evidence of the first prosecution witness was taken at the trial.

Counsel to the Appellant raised many queries in this appeal on the way and manner the evidence of the first prosecution witness was taken at the trial. Counsel queried how a girl of five years who did not go to school can give her testimony in English and without an interpreter and was able to state her address in full. Counsel was of the view that this was not possible and he concluded that it meant that the lower Court must have assisted the witness to testify in the manner recorded in the record of proceedings. The law is that the Appellant having not contested the manner of the taking of the evidence of the witness at the trial Court, he cannot be heard to contest same in this appeal – Durwode Vs State (2000) 15 NWLR (Pt. 691) 467, Nnakwe Vs State (2013) 18 NWLR (Pt. 1385) 54, Adama Vs State (2018) 3 NWLR (Pt. 1605) 94, Ameh Vs State (2018) NWLR (Pt. 1632) 99 and Saleh Vs State (2019) 8 NWLR (Pt. 1675) 416.

Further, it is obvious that all the queries raised by Counsel to the Appellant were not predicated on what took place in the lower Court as reflected on the face of the records of appeal, but on conjectures and suppositions arising from the imagination of Counsel. It is elementary that a judicial inquiry is allergic to speculations and conjectures and they cannot be relied upon by a Court of law – Long-John Vs Blakk (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187, Opeyemi Vs State (2019) 17 NWLR (Pt 1702) 403. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 555, Uwaifo, JSC made the point that “… speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.” This Court must say that it was irresponsible and very unprofessional of Counsel to the Appellant to accuse the lower Court of impropriety in the taking of the evidence of the first prosecution witness on the basis of his conjectures and suppositions, without any evidence. The second contention of Counsel to the Appellant against the

evidence of the first prosecution witness was also misconceived.

Reading through the notes of evidence, the first prosecution witness gave a lucid and rational explanation of the rape incident. She testified that she knew the Appellant and his name was Umar and that the Appellant gave her sweet, took her to his room, removed her pant and climbed on top of her. She gave evidence that she cried and that the Appellant threatened that if she told her mother, he would cut her throat and that she stopped crying and the Appellant put his penis in her private part and there was blood. The witness confirmed the truth of her statements under cross-examination and she showed the lower Court her private part where the Appellant put his penis. The evidence of the witness was not shaken or discredited by cross-examination.

In contending against the reliance placed by the lower Court on the testimonies of the second and fourth prosecution witnesses, Counsel to the Appellant stated that the lower Court ought not to have relied on their testimonies as their evidence was hearsay and were fraught with contradictions and that both witnesses were relations of the first

prosecution witness. In the judgment, the lower Court summarized the evidence of the second prosecution witness thus:
“… PW2 in his evidence in chief stated how the mother of PW1 called his attention to the PW1’s condition and how she saw the PW1’s vagina oozing blood. That they all tried their best for the PW1 to tell them the person responsible but she refused to tell. On the 3rd day when PW1’s vagina continued to ooze blood, she told her mother that it was the accused who gave her lollipop and then took her to his house and had sexual intercourse with her. PW2 then confronted the accused together with the mother of PW1 and his wife. That the accused flash his torch light on the face of PW1 and asked PW1 whether he was the one that raped her and she answered Yes. The accused asked her twice and she answered Yes. And again when the accused was arrested, the next day he was brought out and all the police men were there, the PW1 was asked to identify the person that raped her and she still identified the accused person.”

The notes of evidence show that the witness further testified that the first prosecution

witness also identified the Appellant as her assailant in the presence of neighbors who gathered by reason of the attempt of the Appellant and his friend, Dauda, to attack him and the mother of the first prosecution witness. The lower Court evaluated the evidence of the witness thus:
“The evidence of PW2 above was never challenged by the defence during cross examination in fact not a single question was asked by the defence, challenging or contradicting the evidence of PW2 on the identification of the accused by PW1 before them, their neighbors and at the Police. PW2’s evidence therefore remained unchallenged and uncontradicted and not destroyed as a result of cross examination. Evidence that directly affect the matter in contention that is neither attacked nor successfully discredited is good and credible evidence that can be relied upon by the Court. I therefore accept the evidence of PW2 that PW1 identified the accused before PW2, her mother (PW4), the wife of PW2, their neighbors and before the Police at the Hotoro Police Division. The evidence of PW2 therefore corroborated the evidence of PW1 that the accused was the person that raped her.”

With respect to the evidence of fourth prosecution witness, the summary of the evidence in the judgment read thus:
“PW4, the mother of PW1 … confirmed the evidence of PW2 that when her daughter PW1 told her it was the accused that raped her, she, PW2 and another person took PW1 to the place of the accused and confronted him with the allegation of raping PW1. That the accused was with another person by name Dauda and PW1 pointed at the accused as the person that raped her. The accused and Dauda went into their house and brought knife and pestle to attack them. They chased them up to their house. And that Dauda broke PW2’s door, as a result their neighbors heard the banging and came out to find out what was going on. Then the Police came and arrested the accused… That at the police station the next day, the accused was brought out and PW1 was asked in the presence of the accused to tell who raped her. She stated that it was the accused person that climbed on top of her and put his penis into her vagina.”

The lower Court evaluated the evidence of the witness thus:
“The evidence of PW4 was also not debuted(sic), contradicted or challenged by the defence on the identification of the accused by PW1 as the person who raped her. Her evidence which was unchallenged, uncontradicted and not destroyed as a result of cross examination was consistent and credible. It corroborated the evidence of PW1 and confirmed the testimony of PW2 that the PW1 clearly stated the accused as the person responsible for her rape. I therefore accept her evidence as it is of probative value.”

Now, hearsay is said to be testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness. Generally, such testimony, under the rules of evidence, is inadmissible – State Vs Masiga (2018) 8 NWLR (Pt. 1622) 383, Andrew Vs Independent National Electoral Commission supra, Simeon Vs State (2018) 13 NWLR (Pt. 1635) 128, Saraki Vs Federal Republic of Nigeria (2018) 16 NWLR (Pt. 1646) 405. The testimonies of the second and fourth prosecution witnesses as to what happened when the accused confronted the Appellant in their presence, in the presence of

the neighbors and in the presence of the Police was evidence of what they saw and perceived. Their testimonies thereon cannot thus be classified as hearsay – Itodo Vs State (2020) 1 NWLR (Pt. 1704) 1.

On the issue of contradictions in the testimonies of the second and fourth prosecution witness as to who reported the Appellant to the Police between the second prosecution witness and the neighbors, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them – Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248 and Egwunmi Vs State (2013) 13 NWLR (Pt 1372) 525. Further, it is elementary law that minor or trivial inconsistencies or contradictions in evidence do not affect the credibility of a witness and cannot vitiate a trial. The inconsistencies or contradictions to be fatal must relate to material facts and be substantial. They must deal with the real substance of a case – Anyasodor Vs State (2018) 8 NWLR

(Pt. 1620) 107, Oloye Vs State (2018) 14 NWLR (Pt 1640) 509, Awosika Vs State (2018) 15 NWLR (Pt 1643) 446, Salau Vs State (2019) 16 NWLR (Pt 1699) 399, State Vs Ahmed (2020) LPELR 49497(SC). In Theophilus Vs The State (1996) 1 NWLR (Pt 423) 139, the Supreme Court at 155 A-B put the point thus:
“… It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit therefrom.”

Reading through the testimonies of the two witnesses on point, it is obvious that they do not contradict each other, and even if they did, the contradiction was not on facts material to the substance of the case against the Appellant.

On the fact of the second and third prosecution witnesses being relations of the victim, the first prosecution witness, the law is settled beyond per adventure that the mere fact that witnesses are relations of the victim of a crime does not

mean that they are not competent witnesses for the prosecution nor does that mere fact affect the credibility and cogency of their testimony in anyway – Omotola Vs The State (2009) 7 NWLR (Pt 1139) 148, Nkebisi Vs State (2010) 5 NWLR (Pt 1188) 471, Adekoya Vs State (2017) 7 NWLR (Pt 1565) 343, Idagu Vs State (2018) 15 NWLR (Pt 1641) 127, Uzim Vs State (2019) 14 NWLR (Pt 1693) 419.

In the present case, the lower Court evaluated the evidence of the two witnesses and found they were not asked a single question under cross examination in respect of their testimonies on the first prosecution witness pointing out the Appellant as her assailant in their presence, in the presence of the neighbors and in the presence of the Police. It is trite law that failure to cross examine a witness on a material fact, is an acceptance of the truth of the evidence of the witness on that fact – Esene Vs State (2017) 8 NWLR (Pt 1568) 337, Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Patrick Vs State (2018) 16 NWLR (Pt 1645) 263, Egba Vs State (2019) 15 NWLR (Pt 1695) 201.

The evidence of the second and fourth prosecution witnesses were unchallenged and it is settled

law that a Court is obliged to treat unchallenged evidence on a material fact as true, cogent and credible and to act on it, unless the evidence is patently incredible – Olude Vs State (2018) LPELR 44070(SC), Lanre Vs State (2018) LPELR 45156(SC), Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Daniel Vs Ayala (2019) LPELR 49344(SC), Ifediorah Vs Okafor (2019) LPELR 49518(SC). The evidence of the second and fourth prosecution witnesses was not patently incredible. The lower Court was thus entitled, and was correct, to have treated the evidence of the first, second and fourth prosecution witnesses as cogent and credible and to have relied on them in making its findings convicting the Appellant. The second issue for determination is resolved against the Appellant.

Issue Three
Whether the learned trial Judge was right to have refused the defence of alibi put up by the Appellant and therefore convicted him?

In arguing the issue for determination, Counsel to the Appellant stated that the Appellant raised the defence of alibi, saying that he was somewhere else at the time the crime was committed and could thus not have possibly committed the

offence. Counsel stated that the Appellant testified that he was at Crowder General Hospital on the day of the incident for the purpose of obtaining a medical certificate and that he registered at the hospital and was issued with a card and he was requested to undergo certain medical tests and that the Hospital Card was tendered as Exhibit B. Counsel stated that the Appellant gave evidence that he thereafter went to Skye Bank Plc on Ibrahim Taiwo Road to withdraw money to pay for the medical tests and he concluded the tests around 12 noon and that he went for Jumaat prayers at Fagge Central Mosque and thereafter went home at that he got home at 10.30pm on the day. Counsel stated that the Appellant tendered the extra judicial statement he made to the Police upon his arrest as Exhibit C and that he raised the same defence of alibi and gave details of his whereabouts on the day in the statement.

Counsel stated that having raised the defence of alibi at the first opportunity upon his arrest and supplied details, the Respondent had a duty to investigate the defence before trial and he referred to the cases of Chia Vs The State (1996) 6 NWLR (Pt 455) 465

and Aiguoreghian Vs The State (2004) 3 NWLR (Pt 862) 367. Counsel noted that the lower Court did consider the defence of alibi and rejected same and raised doubt about the authenticity of Exhibit C, being a purported original of the extra judicial statement of the Appellant, having been tendered by the Appellant himself when it should by law, Section 121 of the Criminal Procedure Code, be in the custody of the Police. Counsel stated that the fact of the tendering of Exhibit C by the Appellant should not have elicited doubt from the lower Court because nothing stopped the Appellant from obtaining a copy of the statement and that even assuming that the document was improperly obtained, it was admissible evidence by virtue of Section 14 of the Evidence Act.

Counsel to the Appellant traversed through the contents of Exhibit C and stated that they contained sufficient particulars of the whereabouts of the Appellant at the time of the commission of the said rape of the first prosecution witness to warrant investigation by the Police and that it was the duty of the Police to investigate the alibi and not of the Appellant to prove it and he referred to the cases

of Aiguoreghian Vs State (2004) 3 NWLR (Pt 860) 267 and Nsofor Vs State (2002) 10 NWLR (Pt 775) 295. Counsel referred to the case of Onuchukwu Vs State (1998) 4 NWLR (Pt 547) 576 in conceding that the failure of the prosecution to investigate an alibi raised by an accused defendant will not be fatal if there is sufficient evidence before the Court which properly fixes the accused defendant at the scene of the crime. Counsel stated that the quality of evidence that will displace a defence of alibi must be cogent and direct evidence of eyewitnesses and not hearsay and unreliable evidence and he referred to the cases of Bashaya Vs The State (1998) 5 NWLR (Pt 550) 351, Ochemaje Vs State (2008) 15 NWLR (Pt 1109) 57 and Attah Vs The State (2010) 10 NWLR (Pt 1201) 190. Counsel stated that the evidence of the first, second and fourth prosecution witnesses did not qualify as such evidence and that as such the lower Court was in error when it refused to give credence to the defence of alibi raised by the Appellant. Counsel urged the Court to resolve the third issue for determination in favour of the Appellant.

In his response, Counsel to the Respondent stated that

the defence of alibi rests on the jurisprudential postulate of the physical impossibility of an accused person’s involvement in a crime when he was elsewhere other than the scene of the crime at the relevant time the offence took place and he referred to the cases of Ayan Vs The State (2013) 15 NWLR (Pt 1376) and Shehu Vs The State (2010) 8 NWLR (Pt 1195) 112. Counsel stated that for the defence of alibi to succeed, an accused person must raise it promptly, meaning at the earliest opportunity and this is usually in his extra judicial statement to the Police at the time of his arrest, and properly, meaning unequivocally as to the time, the address of the place he was and the names of the people who were with him at the time relevant to the commission of the crime and he referred to the cases of Ozaki Vs The State (1990) 1 NWLR (Pt 124) 92, Ochemaje Vs The State (2008) 10 SCM 103 and Njovens Vs The State (1973) NSCC 257.

Counsel stated that where the defence is not raised promptly and properly, there is no legal duty on the Police to investigate it and the defence crumbles automatically and completely where the prosecution leads cogent evidence which

fixes the accused at the scene of crime and he referred to the cases of Bashaya Vs The State (1998) 5 NWLR (Pt 550) 351 and Kolade Vs The State (2017) LPELR 42362(SC). Counsel conceded that it was on record that both in his oral testimony and in his extra judicial statement, Exhibit C, the Appellant rendered a narrative suggesting that he was somewhere else at the time of the commission of the rape of the first prosecution witness, but stated that the narrative was lacking in specific particulars of the places and the people that the Appellant said he was at and with. Counsel stated that the lower Court perspicaciously analyzed the narrative rendered by the Appellant, both in his oral evidence and in Exhibit C, and made unassailable findings that the defence of alibi was not properly made out by the Appellant to have warranted Police investigation and that these findings of the lower Court were not appealed against by the Appellant.

Counsel stated that, additionally, the evidence of the first prosecution witness, ably corroborated by the testimonies of the second and fourth prosecution witnesses, and which the lower Court accepted as cogent, effectively

cancelled the alibi of the Appellant. Counsel stated that lower Court rightly rejected the case made by the Appellant on the defence of alibi and he urged the Court to resolve the third issue for determination in favour of the Respondent.

(Pt. 1686) 204, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Opeyemi Vs State (2019) 17, NWLR (Pt 1702) 403, Sale Vs State (2020) 1 NWLR (Pt 1705) 205, Ugwu Vs State (2020) LPELR 49375(SC). But perhaps one of the best expose of the principles was that made by Achike, JSC, in the case of Ebre Vs State (2001) 12 NWLR (Pt 728) 617, where His Lordship stated:
“We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far-reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularization of his whereabouts on the crucial day the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably, be capable of investigation by the Police should they wish to do so. A fair minded tribunal would have no other option than to

exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused…
Conversely, where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make-believe of plea of that defence, and which are completely devoid of material facts worthy of investigation, the Police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi. For example, where the accused person in his extra-judicial statement stated that either that ‘he was not in town on that day’ or that ‘he traveled to a neighbouring town or village – Awka’, and nothing more, no

reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.”

It is settled law that the application of laid down legal principles in a case must take into consideration the peculiar facts and circumstances of the case; cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC). The Appellant predicated his defence of alibi on the contents of the extra judicial statement which he said he made to the Police upon his arrest. The statement, tendered by the Appellant as Exhibit C, read, in the material part, thus:
“… On that same 24th of August, 2012, I was at the General Hospital at Kuroda for a medical certificate, I was asked to provide including my credentials following an aptitude test conducted with Integrated Corporate Services, Behind Trade Fare Complex Zoo Road. My money could not cover the test bill, I then left for Skye Bank Ibrahim Taiwo Road to

get some money, getting back they said they have close for the day because is Friday. I gave the money and was asked to come back for the reporters of the result have gone. I then left for Beirut Road at Mai Gwado Communication to purchase a cell phone branded Q9 and also join the queue to register the line at same Beirut Road. After ward it was after One already, I proceed to a cousin of mine house Hajiya Hadiza Bala Faggae and only met her house help. From their I proceeded to Faggae Central Mosque to perform Juma’at prayers which commences at 2.16pm after the prayers I proceeded to Saye Quarters and branched at a friend shop and plug the phone for the period of not less than 3 hours as specified by the makers. I came back home at night on that 24th August, 2012 and was not around the area at any of the time they mentioned …”

Now, it is commonsensical that the particulars of a defence of alibi must be considered vis-à-vis the nature of the crime committed and the time the crime was said to have been committed. The offence for which the Appellant was arraigned in Court is rape. The allegation against the Appellant was that he

lured the first prosecution witness with lollipop into his room and had sexual intercourse with her. It was not the case of the Respondent that the Appellant spent a whole day or even hours of the day to commit the offence. Thus, the particulars of the alibi presented by the Appellant must be considered against the date and the specific time the offence was said to have been committed.

In the charge preferred against the Appellant, he was said to have committed the offence at about 4pm on the 24th of August, 2012. The records of appeal shows that neither at the time of the reading of the charge nor at anytime throughout the trial did the Appellant or his Counsel protest the particulars of the charge. The records show that the second and fourth prosecution witnesses testified that the incident occurred in the afternoon hours of the day. Now, where did the Appellant say in Exhibit C that he was in the afternoon hours of the 24th of August, 2012? The Appellant stated that he went to Faggae Central Mosque after 1pm to perform Juma’at prayers and which commenced at 2.16pm and that after the prayers he proceeded to the shop of a friend in Saye Quarters where

he charged his phone for three hours and he got home in the night of the day. The Appellant did not mention the name and address of anyone he met or who saw him in the Faggae Central Mosque and neither did he mention the name and address of the friend whose shop he said he went in Saye Quarters.

The account given by the Appellant of his whereabouts in the afternoon hours of the 24th of August, 2012 when the offence of rape was committed was porous, vague and devoid of material facts and was not worthy of investigation by the Police. In rejecting the defence of alibi, the lower Court stated in the judgment thus:
“On the alibi raised by the accused person in his defence, the alibi could not be investigated because the accused did not give any particulars that will help the Prosecution in investigating his alibi. He did not give the address and the names of the persons that were with him in all the public places he stated he was there. I therefore find the alibi raised by the accused in his defence can not be a defence to this charge. The accused further failed to give account of his where about from the time he left the Fagge Juma’a Mosque

to Saye Quarters and finally to his house. I therefore hold the accused has not defended the case against him with any concrete defence.”

This finding of the lower Court is unassailable and cannot be faulted on the facts and circumstance of this case. Additionally, the lower Court found that the evidence of the first, second and fourth prosecution witnesses were cogent, direct and credible and that they located the Appellant at the scene of the crime as the culprit. It is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya Vs State (2010) 3 NWLR (Pt. 1181) 423, Afolalu Vs State (2010) 16 NWLR (Pt. 1220) 584 and Sunday Vs State (2010) 18 NWLR (Pt. 1224) 223. The contention of the Appellant on the third issue for determination fails and the issue for determination is resolved in favour of the Respondent.

The resolution of the three issues for determination in this appeal in favour of the Respondent means that the appeal is devoid of merit and it is

hereby dismissed. The judgment of the High Court of Kano State delivered in Charge No. K/36C/2013 by Honorable Justice Aisha R. D. Mohammed on the 5th of May, 2014 is affirmed along with the conviction of and the sentence passed on the Appellant therein. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered. He has in his characteristic manner, adequately resolved the issues. I agree with his reasoning and conclusion. This appeal has no merit and I dismiss it. I affirm the Judgment of the trial Court.

AMINA AUDI WAMBAI, J.C.A.: I was privileged to read before now, the lead judgment delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. My learned brother has considered and ably resolved all the issues in this appeal.

I agree with the reasoning and conclusion that there is no merit in this appeal. I too dismiss the appeal and affirm the judgment of the lower Court including the conviction and sentence passed on the Appellant.

Appearances:

Kayode Amodu For Appellant(s)

Ibrahim Mukhtar, AG, Kano State with him, S. A. Ma’aji, DPP and Zahraddeen Kofar Mata Hamisu, SSC, MoJ Kano State For Respondent(s)