IFEANYI OBI v. THE ATTORNEY GENERAL OF IMO STATE
(2014)LCN/7639(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of December, 2014
CA/OW/59/12
RATIO
CRIMINAL LAW: THE DEFENCE OF ALIBI; THE EFFECT OF THE NON-INVESTIGATION OF ALIBI BY THE PROSECUTION
There was enough material before the police to enable them investigate the alibi. They did not and gave no reason for failure to do so. It did not lie with the trial court to help out the prosecution to buttress its case against the appellant. See SUNDAY vs. STATE (2007) 13 NWLR (Pt. 1052) 633. The non-investigation of this alibi was clearly fatal to the prosecution’s case. per. RAPHAEL CHIKWE AGBO, J.C.A
CRIMINAL LAW: THE DEFENCE OF ALIBI; WHAT IS REQUIRED OF A PARTY SETTING OUT AN ALIBI
The law requires a party setting out an alibi to inform the police where he was at the time of the crime and the person he was with. See OFOLABI vs. THE STATE (2011) 194 LRCN 136; NWATURUOCHA vs. THE STATE (2001) 197 LRCN 114. per. RAPHAEL CHIKWE AGBO, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
Between
IFEANYI OBI Appellant(s)
AND
THE ATTORNEY GENERAL OF IMO STATE Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A (Delivering the Leading Judgment): The appellant was the first accused person in Charge No. HAM/55c/2007.
He faced a simple count of armed robbery together with the second accused.
They were arraigned at the Aboh Mbaise Judicial Division of the High Court Imo State. It was trial by information. The offence contained in the information was that the accused persons on the 9th day of April 2007 at Akabor Ahiazu Mbaise armed with firearms robbed one Dr. Reginald C. Ike of his Cherokee Jeep. The case proceed to trial and on 26th July, 2011 the trial High Court in a considered judgment discharged and acquitted the 2nd accused, convicted the appellant of the offence of armed robbery and sentenced him to death. Dissatisfied with this judgment the appellant filed this appeal.
The facts of the case are very brief. On the night of 9th April 2007 at Akabor Ahiazu Mbaise some youth were congregated in front of the compound of one Chief Onu between 8pm and 9pm to discuss the impending marriage of one of the village girls. There was no public power supply but Chief Onu’s electricity generator was on. Dr. Reginald Ike had a residence about one hundred metres away from Chief Onu’s. A lone motorcycle came along. There were three persons on it. Some of the youth felt they recognized one of the passengers on the motorcycle as a young man they know as “Anyiam” from a neighboring community. They hailed him calling out “Anyiam” and he purportedly responded by waving back at them. Soon thereafter a Cherokee Jeep drove past. The motorcycle allegedly followed it. A couple of minutes later the group of youth heard a distress call of “thief” “thief” from Dr. Ike’s compound. They rushed to the place where they were informed by Dr. Ike that he had just been disposed of his Chirokee Jeep by two armed men at the gate of his house. The youth were convinced that it could only have been perpetrated by those they saw on the motorcycle. They proceeded to Anyiam’s village where they did not meet Anyiam but found a “warm” motorcycle which they seized as they were convinced the motorcycle was the one used by the robbers. That night the robbery was incidented at the Police Station by a brother of Dr. Ike against the 2nd accused and the mother and sister of “Anyiam” later on hearing that his mother and sister were in police custody the 1st accused turned himself in to the police and in his statement to the police denied partaking in the robbery stating that he was resident in Ghana but on 9-4-2007 had come down Lagos to purchase motor spare parts. He stayed with his sister and returned to Ghana the next day.
Upon conviction the appellant filed a seven ground notice of appeal wit:
GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
“The trial court prejudged the case when it commenced its judgment thus “the accused persons on 9/4/07 at Akabor ahiazu Mbaise in Aboh Mbaise Judicial Division armed with firearms did rob one Dr. Reginald C. Ike of his grand Cherokee jeep contrary to S. 1(2) (a) of the Robbery and Firearms Act, cap 398 vol. (xxii) 1 L.R.N, 1990. They were arraigned before me on one count information.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he held that the appellant did not make his plea of alibi and this occasioned a miscarriage of justice.
GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he held that the appellant was in Mbaise on the day of the alleged robbery and this occasioned a miscarriage of justice.
GROUND FOUR: ERROR IN LAW
The trial court erred in law when it convicted and sentenced the Appellant on the basis of the evidence of the prosecution which were contradictory and therefore did not prove the offence beyond reasonable doubt.
GROUND FIVE: ERROR IN LAW
The trial court erred in law when it held that the Appellant robbed the PW2 of his Cherokee Jeep and this occasioned a miscarriage of justice.
GROUND SIX: ERROR IN LAW
The trial court erred in law when it convicted the Appellant as charged when no particulars of the offence mentioned the so-called Anyaim who the PW1, PW2 and PW3 said was the person they saw on the said date of the offence.
GROUND SEVEN: ERROR IN LAW
The judgment of the trial court is unreasonable and unsupportable having regard to the evidence on record.
Briefs were exchanged by the parties. The appellant distilled four issues from the grounds of appeal to wit:
ISSUES FOR DETERMINATION IN THIS APPEAL
The issues as formulated are:
Whether the Trial Court was right when it held, “The Accused persons on 9/4/2007 did rob one Dr. Reginald C. Ike his grand Cherokee Jeep…” When there was no evidence offered by PW2 as to the ownership of the purported jeep. (Ground one and Ground five).
Whether the non-investigation of the Alibi timeously raised by the Appellant is not fatal to the prosecution’s case. (Ground Two and Ground Three).
Whether there were no contradiction in the evidence of prosecution’s witnesses which ought to have created doubt in the mind of the trial court and ought to have been resolved in the Appellant’s favour. (Ground four).
Whether the verdict was reasonable and supported having regard to the evidence led at the Trial Court (Ground seven).
The respondent on the other hand distilled 3 issues for determination to wit:
a. Whether it was wrong in law and therefore occasioned a miscarriage of justice when the trial court held; “the accused persons on 9/4/2007 did rob one Dr. Reginald C. Ike his Grand Cherokee Jeep….” And whether PW2 offered evidence as to his ownership of the Jeep.
b. Whether the so called Alibi of the Appellant is capable of investigation.
c. Whether the Respondent proved its case against the Appellant according to law.
The Respondent’s issues are better articulated and I shall use them in determining this appeal. Even at that respondents issues 1 and 3 are saying the same thing. I shall therefore compress the issues to two to wit:
1. Whether the appellant’s alibi is capable of investigation and if it is the effect of the non-investigation.
2. Whether the Respondent proved its case against the appellant beyond reasonable doubt.
Issue 1 whether the appellant alibi is capable of investigation and if it is the effect of the non-investigation.
In exhibit “M” made to the police on 20th April 2007 the appellant informed the police that on 9-4-2007 being Easter Monday, he was in Lagos with his sister Vivian Obi. He in the same document informed the police that Vivian Obi lived at the Charismatic Renewal Ministry Obalende Lagos. The law requires a party setting out an alibi to inform the police where he was at the time of the crime and the person he was with. See OFOLABI vs. THE STATE (2011) 194 LRCN 136; NWATURUOCHA vs. THE STATE (2001) 197 LRCN 114.This information was not investigated by the police. The learned trial judge’s treatment of this issue makes interesting reading.
He first of all construed exhibits “K” and “M”. The police officer who tendered exhibits “K” and “M” made it plain to the court that exhibit “K” was not signed by the appellant. The appellant refused to sign it because he said what the police recorded therein did not represent what he told the police. Exhibit “K” was therefore not worth the paper it was written on and should not have been referred to by the trial judge. He went further to state in his judgment “Obalende is no address, it is an area, a vast one for that matter in Lagos. How will the police trace his sister Vivian on getting to Obalende?” I painstakingly went through the record of proceedings and nowhere did any of the police witnesses nor in fact any prosecution witness place this information before this judge sitting in Imo State. The personal knowledge of a judge cannot take the place of evidence in matters before him unless judicial notice can be taken of such a fact. There was nothing before the trial judge to suggest that if the police had gone to Obalende they could not have traced the Church called “Charismatic Renewal Ministry” unless the appellant gave them a further detailed address. The conclusion by the trial judge was clearly perverse. There was enough material before the police to enable them investigate the alibi. They did not and gave no reason for failure to do so. It did not lie with the trial court to help out the prosecution to buttress its case against the appellant. See SUNDAY vs. STATE (2007) 13 NWLR (Pt. 1052) 633. The non-investigation of this alibi was clearly fatal to the prosecution’s case. The trial court went further and contradicted the alibi with evidence of D.W.4. Vivian Obi, the appellant’s sister who testified on 16th February 2011. Her testimony was that she lives at Tholanipour close, Ikoyi. That was not evidence of where she lived on 9-4-2008 when the crime was committed. The prosecution did not discharge its responsibility of disproving the appellant’s Alibi.
Issue 2 – Whether the Respondent proved its case against the appellant beyond reasonable doubt.
PW2 was Dr. Chukwudi Reginald Ike, the principal witness of the robbery.
He described in detail what transpired at the entrance to his house. He described in detail how he had seen the appellant that night even though it was night and the public power supply was not available. He testified that he was able to see the appellant because his generator set was on and the inner light of his car was also on. The defence successfully contradicted him with his statement made to the police on 8-5-2007 marked exhibit “B” of this the trial judge said “Defence counsel also pointed out that P.W.2 in exhibit “B” did not state that his generating set was on and that there was light in his compound. Yes, this is true, P.W.2 did not state so in exhibit “B”. However, under cross examination he explained this lapse – he said it was on oversight. I believe him because he vividly described 1st accused person’s physical features and his clothing in his statement exhibit “B”.
If there was no light he would not have been able to do so.” The judge had earlier stated in his judgment “Apart from NEPA generator supplied light, most Nigerians if not all have alternative power supply.”
Lighting is of the essence in the proof of identification in a dark night.
Exhibit “B” was made 29 days after the robbery. It did not show how P.W.2 was able to identify the appellant. The court had queried if there was no light how would P.W. 2 have been able to describe the appellant? This is a mere conjecture, the trial judge conveniently ignored the fact that in the same exhibit “B” P.W.2. had stated that the day after the incident the youth of the community had shown him a picture of the appellant. That was 28 days before he made exhibit “B”. The conclusion by the trial judge that P.W.2 had enough light with which he could identify the appellant during the incident was perverse. Still on the issue of identity, P.W.1 and 3 testified that they were in front of Chief Onu’s house that night with other youth when the appellant in the company of two other persons unknown to them drove past them on a motorcycle. They hailed the appellant who responded by waving back to them but proceeded immediately thereafter to rob one of their kinsmen one hundred yards away. The story beggars belief. The natural reaction on being identified by those men would have been to abort the act.
I am not in doubt that the evidence before the trial court did not meet the standard of proof for criminal offences which is proof beyond reasonable doubt.
The conviction of the appellant by the High Court of Imo State on 27th July, 2011 is hereby vacated and in its place is entered a judgment of not guilty. The appellant is hereby discharged and acquitted.
IGNATIUS IGWE AGUBE, J.C.A.: I have had a careful perusal of the lead judgment of my learned brother, Raphael C. Agbo, JCA (Presiding Justice) and am in total agreement with his reasoning and conclusion that the Learned Trial Judge convicted the Appellant even when the alibi pleaded by the Appellant with sufficient particulars was not investigated by the police who did not advance any reason at all for failure to so do.
Sunday V. The State (2007) 13 NWLR (Pt. 1052) 633 aptly refers.
I further agree with my Lord’s position that the failure to investigate the alibi was fatal to the prosecution’s case.
There is also the incredible and laughable story of the identity of the Appellant by the PW1 and PW3 who purported that the Appellant who was on top of a motorcycle with two other persons waved at them that night along with other youths who were sitting in front of Chief Onu’s house. They hailed the Appellant who a hundred yards away immediately proceeded to rob the Complainant thereafter. Much as the law makes room for reasonable possibilities it does not allow evidence which is in the realm of phantasmagoria or fantastic possibilities as in this case.
Accordingly, I cannot but agree with my Learned Presiding Justice, that the prosecution failed to prove its case beyond reasonable doubt and therefore the Appellant was and is entitled to acquittal. The Appeal hereby succeeds and the judgment of the Trial Court convicting and sentencing the Appellant to death is hereby set aside and Appellant discharged and acquitted.
ITA G. MBABA, J.C.A.: I had the privilege of reading the lead judgment, just delivered by my learned brother, R.C. Agbo JCA (PJ) and I agree with him, that the appeal is meritorious.
The prosecution has a duty to investigate the claims of an accused person when he raises a defence of alibi, and the trial Court is under a duty too to consider the defence. See the case of Chukwunyere vs. The State (2014) LPELR 23779 (CA), where this Court held:
“… once defence of alibi (or any defence for that matter) is raised by an accused person, the prosecution is under obligation to consider it, before coming to its decision.” See also Adio v. The State (1996) 9 NWLR (1987) 3 NWLR (Pt 61) 538
The above legal principle remains compelling as it provides an easy escape door for an accused, wrongly arrested and arraigned, who also must protest his arraignment, timeously, by intimating the police of his innocence and disclosing full information on his where-about at the time of the alleged crime. The defence of alibi is founded on the common knowledge of the finite nature of man, as a terrestrial being, that he can be physically present at only one place at a time. Thus, where an accused person raises a defence of alibi, he is simply telling his accusers that they made a mistake of identity; that he could not have been the person they talked about, as he was not at the scene of the crime at the material time, but elsewhere. He therefore has a duty to supply accurate information as to where he was and the person(s) he was with at the said time, of the offence. See Chukwuneyere vs. The State (supra); Eke vs. The State (2011) 3 NWLR (Pt.1235) 589; Umani vs. The State (1988) 1 NWLR (Pt.70) 274; Ayan vs. State (2013) LPELR – 29032 (SC).
I think after the Accused person had stated, at the earliest opportunity that he was not at the alleged scene of crime, rather that he was with his sister, Vivian, at the Charismatic Renewal Ministry, Obalende, Lagos, the prosecution had a duty to investigate his claims, to disprove the accused person. The alibi had disclosed an address, location and person, which the police should have contacted to prove the accused (Appellant) was elsewhere at the time of the alleged offence – other than the scene of crime.
It did not lie with the Prosecution to choose to disregard the defence of alibi, nor with the court to rationalize why the prosecution did not investigate it. And the court, in its rationalization, even imported evidence from its imagination (not adduced before it) when it said Obalende is no address but area and a vast one, to justify the prosecution’s failure to investigate the alibi!
That is not permissible. A trial judge must not be seen to descend into the arena of conflict in a trial, to generate evidence or facts not canvassed or adduced by witness(es) or apparent on the face of the records before him, to decide a case, See the case of Theophilus Ajakaiye vs. The State: CA/OW/70C/2012, delivered by this court on 5/12/14; Ayoade vs. Spring Bank Plc (2014) 4 NWLR (Pt 1396) 93 AT 128. I too allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
Godson Kiliwe Nwachukwu Esq.,For Appellant
AND
Respondent absent but served.For Respondent
