IROGHAMA ETINOSA v. THE STATE
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2019
ALIBI: WHAT THE DEFENCE OF ALIBI MEANS
The defence of Alibi by an accused person is a combined defence of lack of actus reus and mens rea; i.e. that he was not at the scene of crime and was therefore neither in a position to have committed the offence alleged, nor participated in its commission, nor even had the intention of committing the crime. Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it as a defence, has the burden of leading evidence of the fact of the Alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See
– GACHI VS. THE STATE (1965) ?.. NWLR Pg 333;
– ODIDIKA VS. STATE (1977) 2 SC. 21
– UKWUNNENYI VS. STATE (1989) 4 NWLR (PT. 114) 131 at 144. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
ALIBI: AN ACCUSED PERSON WHO RAISES THE DEFENSE OF ALIBI MUST GIVE ADEQUATE INFORMATION
Where an accused person sets up an Alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime at the earliest possible time. See
– YANOR VS. STATE (1965) 1 ALL NLR Pg. 193;
– SALAMI VS. STATE (1988) 3 NWLR (PT. 85) 670 at 677. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
Before Their Lordships
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Edo State, Benin Division Presided over by S.A. Omonua, J., on an information of five Count Charge of conspiracy to commit Armed robbery and Armed Robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap RII. Vol.14, Laws of the Federation of Nigeria, 2004.
In a considered judgment delivered on the 25th day of February, 2016, the learned trial Judge convicted the Appellant on each of the five Counts and sentenced him to death. This Appeal is premised on the said judgment.
SUMMARY OF FACTS:
The case as presented by the Prosecution at the trial Court was that on the 25th day of September, 2009 at about 3.am the Appellant and some robbers armed with Guns and Cutlasses invaded the homes of PW1 and others at No. 2 Okoko Street, Off Upper Sakponba Road, Benin City. The robbers robbed the following people; Iguisi Godspower, forced his door open and robbed him of N7,000.00, two handsets, his bag. Others were also robbed of different items, they include (b) Iguisi Usunobun, robbed him of his laptop, cash of N177,000.00 and clothes. (c) Imade Richard Eghosa, took away N50,000.00 his Nokia 9 Series and another sum of N25,000.00 belonging to his grandfather and Ten Thousand belonging to his father. (d) Odigie Osaze Emmanuel, made away with his Nokia phone and N10,000.00 respectively.
According to PW1 Iguisi Godspower, soon after the robbers left he saw the Appellant by the door, so he grabbed him and raised an alarm that attracted people who called the Police and the Appellant was arrested. The Cutlass the robbers took from the house of PW3 was found with the Appellant.
Upon arrest, the Appellant was interrogated and the statements of the Complainant, other victims and the Appellant were recorded. Five witnesses testified for the prosecution and three for the defence.
On the 14th of January, 2016, the defence opened their case by calling DW1 Dr. Chibuzo Uzoegwu, Deputy Controller of Prisons, Benin City. DW1 though not a Psychiatrist and never treated the Appellant said the Appellant was treated by Psychiatrists who visit the Prisons twice every month.DW2 was the wife of the Appellant?s Uncle. She testified that her husband once took the Appellant to the Psychiatric Hospital even though she did not go with them.
In his defence the Appellant who testified as DW3 relied on what he termed Alibi and also his defence of insanity and Claimed not to have remembered some events.
In a considered Judgment, the Learned trial Judge believed the version of the prosecution and disbelieved the version of the Appellant. He then proceeded to convict and sentence the Appellant to death.
Dissatisfied with the said judgment, the Appellant appealed to this Court vide a Notice of Appeal filed on the 25th of March, 2016. Subsequently the Appellant amended his Notice of Appeal which was deemed properly filed on the 14th day of November, 2017.
Learned Counsel for the Appellant I. Imadegbelo Esq., distilled three issues for determination as follows:
i. ?Whether the learned trial Judge was right in failing to consider the evidence on Record that the Appellant alleged in his statement to the Police that he was stopped, interrogated and beaten by vigilante men outside the scene of crime and that the Alibi put up in his statement was not investigated by the prosecution.
ii. Whether the Lower Court was justified in finding that the defence of insanity did not avail the Appellant in this case.
iii. Whether the Lower Court was right in holding that the Respondent proved the Voluntariness of the confessional statement (Exhibit B) and the offences of conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt.?
Learned Counsel for the Respondent Paulyn .O. Abhulimen Esq., on the other hand distilled a sole issue for determination thus:-
?Whether the prosecution proved beyond reasonable doubt the counts of Conspiracy to Commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt as required by law.?
The issues raised by both Counsel can conveniently be compressed into one straight forward issue of narrow compass thus:-
Whether on the facts and circumstances of this case, the learned trial Judge was right in rejecting the defence of Alibi and insanity put forward by the Appellant holding that the Prosecution proved its case beyond reasonable doubt.?
Taking the issues he formulated, learned counsel for the Appellant I. Imadegbelo Esq., contended, in summary that the Appellant at the earliest possible time told the police that at the time of the robbery that he was stopped, interrogated and beaten by the vigilante men outside the scene of the crime. Counsel argued that failure by the police to investigate this Alibi was fatal to the case of the prosecution and it was therefore erroneous for the learned trial Judge to ignore these evidence on Record. He cited
– ESENE VS. THE STATE (2017) 8 NWLR (PT. 1568) Pg 337 at 375.
– OSUAGWU VS. STATE (2013) 5 NWLR (PT. 1347) Pg 360.
– HASSAN VS. THE STATE (2001) 6 NWLR (PT.709) Pg 286, among others.
Counsel for the Appellant also made heavy weather concerning the defence of insanity put up by the Appellant which learned trial Judge held was not proved and therefore the defence of insanity did not avail the Appellant. He referred to the testimonies of DW1, DW2 and DW3 and posited that there was no contrary evidence led by the prosecution to contradict the evidence of the Appellant that he suffered from Psychiatric illness which required medical attention. He cited;
– MADJEMU VS. STATE (2001) 9 NWLR (PT. 718) Pg. 394;
– ANI VS. STATE (2003) 11 NWLR (PT. 830) Pg. 142 among others.
He also referred to Exhibit B the confessional statement and submitted that the prosecution failed to prove the voluntariness of Exhibit B and frowned at the decision of the trial Court to admit same as evidence.
He pointed specifically at what he term as inconsistencies in the testimonies of the prosecution witnesses, failure by the prosecution to properly identify the Appellant and concluded that the prosecution failed to prove its case beyond reasonable doubt. The Appellant also filed a Reply brief.
Reacting to the foregoing, Learned Counsel for the Respondent P. O. Abhulimen Esq., referred to the evidence of the prosecution witnesses and contended that the prosecution proved all the ingredients of the offence of Armed Robbery and Conspiracy to Commit armed robbery against the Appellant beyond reasonable doubt. He cited:
– STATE VS. OLADOTUN (2011) 5 SC (PT. 11) 133;
– OREOLUWA ONAKOYA VS. FEDERAL REPUBLIC OF NIGERIA (2012) 6 SC (PT.11) 220.
On the defence of Insanity, counsel posited that the Appellant deliberately embarked on selective recollections of events which suit him like identifying DW1 as his Uncle?s wife and the fact that he was a student of Ambrose Ali University and on Chevron Scholarship. He cited
– ASAFA FOODS LTD VS. ALRAINE NIG. LTD & ANOR (2002) 5 SC (PT. 1) Pg 1.
On the defence of Alibi put forward by the Appellant, Counsel argued that where the prosecution adduces sufficient evidence to fix an accused person at the scene of crime, his defence of Alibi is demolished and enough to render such a defence ineffective. He cited
– NDUKWE VS. THE STATE (2011)?.VOL. 9 LRCNCC 219 at 226;
– ATTAH VS. STATE (2010) VOL. 30 WR.N Page 1.
Counsel submitted that the testimonies of the Prosecution witnesses as well as Exhibits A and B directly connected the Appellant to offences as charged.
Let me start with the offence of Conspiracy to Commit Armed Robbery before going into the offence of armed robbery proper.
Conspiracy is the meeting of minds of at least two persons to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful manner. There can be no conspiracy unless at least two persons conspire. See IKEMSON VS. THE STATE (1989) 1 C.L.R.N Pg. 1.
It is trite that the offence of conspiracy is difficult to prove. This is understandable because it is often contrived in secrecy. Circumstantial evidence is often resorted to in pointing to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy.
The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.
In the instant case, the offence of conspiracy can be inferred from the evidence of the prosecution witnesses.
PW1 in his testimony at page 30 of the Record of Appeal stated as follows:
?On that day, at about 4.06 am, I had a knock on my door and a voice ordering me to open the door and that they were armed robbers. Before I knew it my door was kicked open with force, they ordered me to lie down and hit my back with the Matchet they were holding They went to my room and took the money which was in my trouser pocket. They took my two handsets, MTN line and GLO line…?
PW2 Iguisi Usunobun in his own testimony stated thus:-
?… I also know the accused in the dock. I