JAMES UFOR v. THE STATE
(2016)LCN/8167(CA)
RATIO
EVIDENCE: CONTRADICTORY EVIDENCE: WHETHER A TRIAL COURT IS ALLOWED IN LAW TO PICK AND CHOOSE BETWEEN THE TWO VERSIONS OF THE CONTRADICTORY EVIDENCE
It is well settled in law that where a trial Court is faced with substantial and/or fundamental contradictions between the evidence of a witness at the trial and his previous statement(s) on a material issue or issues crucial for the determination of the case in hand, the Court is left with only one option, namely, that it is unsafe to act on such unreliable evidence or the previous sworn or unsworn statement(s). In the result, the Court is obliged to reject both the previous statement(s) as well as the evidence of the witness during trial. A trial Court is not allowed in law to pick and choose between the two (2) versions. See Igbi v. State (1998) 11 NWLR 419 @ 431. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: CONTRADICTORY EVIDENCE; THE EFFECT OF CONTRADICTORY AND WHEN CAN CONTRADICTION CAN BE SAID TO HAVE OCCURRED
Also, it is trite law that where the evidence of the prosecution witnesses are materially contradictory, doubt is held to have been created in the prosecution’s evidence, and to which a Court of law is bound by virtue of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to resolve in favour of the accused person(s). See Kalu v. State (1988) 4 NWLR (Pt. 70) 503; Iregu v. State (2013) 12 NWLR (Pt. 1367) 92 @ 126. But before evidence is said to be contradictory in nature so as to create a doubt as to which of the two (2) alternative versions should be believed, it must be such as to change the course of events. The contradiction in this respect must be material and very fundamental. It must in other words imply that there are two (2) or more conflicting accounts or versions of the same incident. Contradiction can therefore be said to have occurred where one witness?s account of an incident is at variance with another?s account of the same incidents, such that accepting the account of one witness would mean rejecting the version of the other because both accounts are mutually exclusive and in conflict. See Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525 @ 562- 563, paragraphs H B. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
THE DEFENCE OF ALIBI: THE DUTY OF THE INVESTIGATING POLICE OFFICER TO INVESTIGATE THE DEFENCE OF ALIBI AND DISPROVE IT
On the issue of alibi, basically, when as accused raises the defence of alibi, what he is saying in essence is that when the offence for which he was being tried was committed, he was elsewhere. Thus, where a defence of alibi is promptly and properly raised by an accused with particulars of his whereabouts, it behoves on the investigating police officer to investigate it and disprove it, hence the failure or default in so doing would be held fatal to the case of the prosecution. See Onafowokan v. State (1986) 2 NWLR (Pt. 23) 496 @ 497, paragraphs E F. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: EVIDENTIAL BURDEN; WHEN IS AN ACCUSED PERSON BE ADJUDGED TO HAVE PROPERLY DISCHARGED THE EVIDENTIAL BURDEN PLACED ON HIM
An accused person would be adjudged to have properly discharged the evidential burden placed on him where he raised the plea of alibi at the earliest opportunity and gave vivid or detailed particulars of his whereabouts at the material time. See Iregu v. State (2013) 12 NWLR (Pt. 1367) 92 @ 128 ? 130; Sadiku v. State, (supra) 216; Odu & Anor. v. State (2001) 7 NWLR (PT. 664). per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 8th day of February, 2016
CA/E/155C/2013
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
JAMES UFOR – Appellant(s)
AND
THE STATE – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the Enugu State High Court sitting at Enugu, delivered on the 5th day of February, 2002 in Charge No. E/5ART/98. The facts of the case are as follows: Sometimes in 1998 and as a result of armed robbery incident which took place sometimes in 1997, the appellant, James Ufor, was the second accused person among the accused persons who were arraigned before the Robbery and Firearms Tribunal of Enugu State holden at Enugu on a two (2) count charge of criminal conspiracy and armed robbery, contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. XXII, Laws of the Federation of Nigerian, 1990.
Upon being charged and with their pleas having been taken and in the course of the hearing before the Armed Robbery and Firearms Tribunal, the 3rd and 8th accused persons thereat were discharged therefrom at the instance of the Tribunal and the Prosecution, respectively. The above stated facts happened in recent past. Now to the present case which gave rise to this instant appeal.
?The
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appellant and five (5) other accused persons were re-arraigned before the High Court of Enugu State, holden at Enugu (hereinafter referred to as the lower Court) on a one count charge of armed robbery, contrary to Section (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. XXII, Laws of the Federation of Nigeria, 1990. The said armed robbery incident was alleged to have taken place on the 21st day of April, 1997 at Mile 17 along Enugu – Abakaliki Express Road, around 7:00pm ? 7:30pm.
At the hearing, on the 7th day of July, 1999 to be precise, the Appellant and each of the other accused persons pleaded ?not guilty? to the charge. Hearing in the case commenced on 4th October, 1999. The prosecution called eight (8) witnesses and closed its case. Similarly, the accused persons on the whole and inclusive of the appellant herein called eight (8) defence witnesses. After the close of the case for the defence, learned counsel for both parties addressed the trial Court. At the end of it all, the learned trial judge found and concluded thus:
?In the final analysis, this Court finds the present charge not proved
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against the 1st accused, the 3rd accused and 6th accused persons. They are therefore each discharged and acquitted. In this case of the 2nd accused, the 4th accused and 5th accused persons, this Court finds each of them guilty as charged.
The second accused person is therefore hereby convicted of the offence of armed robbery. The 4th accused person is also convicted of the offence of armed robbery, as is the 5th accused person also convicted of the offence of armed robbery.”
The convicted accused persons inclusive of the appellant herein were sentenced to death by hanging.
The appellant in this case was dissatisfied with the said decision of the trial Court and as a result thereof, filed an appeal against the decision vide a Notice of Appeal filed on the 14th day of November, 2003. The said Notice of Appeal was struck out for being incompetent as it was signed by the appellant?s counsel and not the appellant. Howbeit, by a Motion on Notice filed on the 17th day of March, 2014 and granted on the 18th day of November, 2014, time was extended for the appellant to file his Notice of Appeal and the appellant?s Notice of Appeal
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dated the 25th day of February, 2013 was deemed as properly filed; wherein the learned counsel to appellant challenged the said decision on two (2) grounds. The grounds without their particulars are as follows:
?A. ERROR OF LAW
The learned trial judge erred in law when he convicted the Appellant of the offence of armed robbery solely on the self – evident contradictory statement and evidence of one witness.
B. ERROR OF LAW
The learned trial judge erred in law when he convicted the appellant of the offence of armed robbery although clear evidence of the statements made by the Appellant abounded.?
In accordance with the rules of this Court, the parties filed their respective briefs of argument. The appellant?s brief of argument was filed on the 9th day of March, 2015. The brief was settled by Ikeazor Akaraiwe, Esq. The respondent?s brief of argument dated the 5th day of November, 2015 was deemed as properly filed and served on the 9th day of November, 2015.
?The appellant?s counsel in the appellant?s brief of argument distilled two (2) issues for the determination of this appeal. The
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issues are as follows:
?1. Whether the learned trial judge was correct in his finding that the Appellant was sufficiently identified, given the facts and circumstances of this case.
AS A COROLLARY
Whether the learned trial judge was right in relying on the contradictory evidence of the prosecution witnesses and the Appellant to convict the Appellant of the offence of robbery.
2. Whether the Prosecution proved the offence of conspiracy to commit armed robbery beyond reasonable doubt against the Appellant.
AS A COROLLARY.
Whether it was right for the trial judge to hold that the prosecution proved its case beyond all reasonable doubt when the alibi of the Appellant, which was set up timeously as evidence by extra judicial statement to the police, was not investigated at all and the prosecution?s case was fraught with doubts. That is to say whether the prosecution discharged the onus on it to dislodge the plea of alibi of the Appellant.?
The respondent?s counsel on his own part, in the respondent?s brief of argument distilled four (4) issues for determination of this appeal. The issues are as
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follows:
(i) Whether there is sufficient evidence of identification against the Appellant.
(ii) Whether the alleged contradictions in the evidence of the prosecution affected the justice of the case.
(iii) Whether the defence of Alibi availed the Appellant.
(iv) Whether the charge against the Appellant was proved beyond reasonable doubt.
It is instructive to state here that, this Court has consistently frowned at the habit of counsel in proliferating issues for determination than the grounds of appeal.
Issues for determination in an appeal are expected to be equal in number to the number of grounds of appeal or less. In this instant, it was the respondent that formulated more issues for determination far above both the grounds of appeal as well as the issues formulated by the appellant. This attitude of respondent can be described as an act of crying more than the bereaved.
?Also, I am constrained to observe regarding the incoherent and inelegant manner in which the grounds in the Notice of Appeal were couched. Save for the particulars of error in the said grounds, one would have been at a loss at what the learned counsel for
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the appellant was trying to communicate. Furthermore, the appellant?s counsel notwithstanding the fact that he claimed to have raised two (2) issues, he in fact raised four (4) issues and somewhat argued the same.
The above notwithstanding; in line with the practice of this Court and in the overwhelming interest of justice, I am obliged to make the best possible use of the said grounds of appeal, issues and arguments thereon. Thus, having perused the record of appeal and the grounds of appeal, I hereby distill the following sole issue for the resolution of this appeal:
?Whether the charge against the appellant was proved beyond reasonable doubt.?
It is the contention of the learned counsel for the appellant that there were insufficient evidence which nailed the appellant to the robbery incident. The learned counsel contended that having regards to the circumstances of the incident and the surrounding environmental circumstances, it is unsafe contrary to what the lower Court held that to hold the appellant was sufficiently identified by the prosecution?s witness (PW2). The learned counsel contended further that there were
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material inconsistencies in the statement of the said PW2 at the police station (Exhibits D &E) and his testimonies in Court. Again, it is the contention of the learned counsel that the evidence of the said PW2 equally materially contradicts the evidence of PW1, and the learned counsel in order to strengthen his contention graphically dissected the evidence on the printed record of appeal to demonstrate the inconsistencies and sought to establish based on the evidence on record that this case falls into the category of the circumstances in which identification parade is required in order to properly determine if the appellant was actually one of the armed robbers that the complainant (which incidentally is P.W.2) allegedly attacked him; especially on the premise that it was in evidence that the incident happened in the latter part of the day in a compound in a village with no proper lighting, except for the flashes of light from passing vehicles. The learned counsel therefore submitted that the failure of the police to conduct identification parade considering the peculiar circumstances of this case as well as the contradictions in the evidence of the
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respondent witnesses is fatal to the case of the respondent and has created substantial doubts in the evidence of the respondent, which doubts are required by law to be resolved in favour of the appellant. The learned counsel relied on the following cases among others: Ojukwu v. State (2002) FWLR (Pt. 98) 943; Bolanle v. The State (2005) 7 NWLR (Pt. 925) 431 @ 452; Hausa v. State (1992) I NWLR (Pt. 219) 600 @ 611; and Mbenu v. The State (1988) 3 NWLR (Pt. 84) 625.
Again, the learned counsel for the appellant contended that the lower Court failed to appreciate and properly appraise the appellant?s alibi. The learned counsel submitted that the failure of the police to investigate the alibi of the appellant which he properly and timeously raised was fatal to the case of the respondent. He relied on the following cases: Azeez v. State (2005) 8 NWLR (Pt. 722) 312; Ndidi v. State (2005) NWLR (Pt. 953) 17.
The learned counsel submitted further that Courts of Law are enjoined to consider all the defence of an accused person no matter how weak, far fetched, foolish and conflicting as it may appear. He relied on the case of Ibikunle v. State (2005) 1
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NWLR (Pt. 907) 367 @ 405, para. H.
The learned counsel contended that the appellant having given particulars of his whereabouts when he was first arrested, he has discharged the evidential burden placed on him by law and the prosecution is saddled with the responsibility of disproving the said alibi with stronger evidence than the one put forward by the appellant. He relied on the case of Azeez v. State (2005) 8 NWLR (Pt. 727) 312.
Thus, the learned counsel submitted that the failure of the police to investigate the appellant?s alibi in order to determine whether it was true or not has equally created doubt, which doubt is required by law to be resolved in favour of the appellant. He relied on the following cases for his submission. Onubogu v. State (1974) 9 SC 1, Abodundu v. State (1959) SCNLR P. 162 and Namsoh v. State (1993) 5 NWLR (Pt. 929) 129.
Finally, the learned counsel urged this Court in the light of the arguments canvassed above, to allow, this appeal and quash both the conviction and sentence imposed on the appellant.
?The learned counsel for the respondent in response submitted that identification is not the only way by
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which the identity of an accused person can be ascertained. He further contended that identification parade is not always necessary as in this case wherein there are overwhelming evidence of PW1 and PW2 in order to ascertain the identity of an accused person. He cited and placed reliance on the cases of Eyisi & Ors. v. State (2000) 82 LRCN 3071 @ 3113 AB, and Jonathan Igbi & Anor v. State (1998) 11 NWLR 419 @ 430.
The learned counsel also maintained that in addition to the cogent and credible evidence of PW1 and PW2, there are other surrounding evidence which effectively establish the fact that the appellant was one of the armed robbers who attacked the complainant and his driver, and the fact that the said victims of the armed robbery incident identified their attackers by the means of head light or lamp from the passing vehicles or bush lanterns is immaterial. He relied on the case of State v. Albangbee (1988) 2 NWLR (Pt. 84) 545 @ 553.
Also, with respect to the defence of alibi. The learned counsel submitted that the defence of alibi by the appellant was an after thought. The learned counsel went ahead to elicit from evidence adduced, the
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alleged inconsistencies in the appellant?s particulars of his where about, it was thus his submission that where there are contradictory evidence in the evidence of the appellant, the Court will not embark on any voyage of discovery in order to ascertain which of the evidence is to be preferred and that Courts are obliged to simply ignore and/or reject both pieces of evidence. He referred us to the cases of Whyte v. Jack (1996) 2 NWLR (Pt. 41) 407; Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 22, paragraphs G ? A; among others.
Again, the learned counsel submitted that the police are not obliged to investigate the alibi of the appellant, based on his inconsistent statements and the appellant?s failure to furnish the police with a specific address of where he was at Onitsha. He referred us to the case of Okosi v. State (1989) 1 NWLR (Pt. 100) 642; and Joshua Alonge v. I.G.P. 4 FSC 203.
?Flowing from the above, the learned counsel for the respondent submitted that in order for an accused person to be convicted of the offence of an armed robbery, the following elements must be proved beyond reasonable doubts:
a. That there was
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robbery.
b. The case was reported.
c. That the robbers were armed; and
d. That the accused person was one of the robbers.
He referred to the case of Bozim v. The State (1985) 2 NWLR (Pt. 87) 488.
The learned counsel submitted that all the above elements of the offence were proved by the respondent beyond reasonable doubts. The learned counsel submitted further that evidence of a single witness is enough to secure conviction of an accused person provided the evidence is credible and admissible in law. Thus, he argued that the appellant having not properly provided the particulars of his whereabouts at the material times of the robbery incident, and the fact that he was recognized by PW2 as one of his attackers has sufficiently affixed him to the scene of the robbery incident. He referred to the case of Oteki v. State (1986) 4 SC 222 @ 47.
Finally, the learned respondent?s counsel urged us to dismiss this appeal as unmeritorious as there was abundant evidence to sustain the conviction. The learned counsel equally urged us not to tamper with the findings of the lower Court, because it has the greatest advantage of seeing,
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hearing and watching the witnesses during the trial.
Having highlighted the arguments of counsel to both parties, I shall now proceed in addressing this issue. It is now well established that the burden of proving the guilt of an accused person is placed squarely on the shoulder of the prosecution to which burden must be discharged beyond reasonable doubt. See Karimu v. State (1989) 1 NWLR (Pt. 96) 126.
Also, this burden as placed on the prosecution generally does not shift, except in circumstances whereby the evidential burden of establishing reasonable doubt and/or special circumstances which is within, the personal knowledge of the accused and which he intends to rely upon is required to be established by him.
In order to secure conviction on an offence of armed robbery, the prosecution is expected to establish the following ingredients beyond reasonable doubt:
i. That there was robbery.
ii. That the robbery was carried out with arms; and
iii. That the accused was one of the persons or participated in the said robbery.
See Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360 @ 386.
It has been established before the lower
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Court that the robbery in fact took place. It was equally established before the lower Court that the robbery attack was indeed carried out with various types of arms. The appellant did not appeal on the above established facts, thus, it is deemed admitted and I have no reason whatsoever to disturb this findings.
The main controversy which led to this appeal is on the third element of the offence. PW2 who is both an eye witness and one of the victims of the robbery incident sought to establish the fact that the appellant was one of its attackers, that is, the appellant was among the gang of the armed robbers who attacked him and stole his valuables or properties. The appellant on the other hand, maintained that he was not part of any robbery gang in his entire life, and was in fact not within the vicinity of where the robbery incident took place.
It is on record before this Court that the robbery incident to which the appellant was charged took place in the latter part of the day, when it was already getting dark, and they could only identify their attackers through the help of the head lights of passing vehicles.
?Both P.W.1 and P.W.2 who were
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eye witnesses and victims of the said robbery attack admitted that they were terrified during the robbery. Also, the said witnesses were consistent in their statements at the police station that when they discovered that armed robbers were upon them, they ran into a nearby compound for safety, which unfortunately for them was the main hide out of the robbers. While this above piece of evidence was later affirmed by P.W.1; P.W.2 changed his story by stating that they were actually attacked by the edge of the road.
It is also in evidence that the complainants (PW.1 and P.W.2) were attacked by at least seven (7) persons, among whom P.W.2 stated that he recognized only the face of the appellant and nothing more.
?The important question that needed to be asked is whether the complainant under the above circumstances could be held to be able to effectively identify and recognize the appellant? In my humble view, the answer to this question is in the NEGATIVE. I subscribe to the submission of the learned counsel to the respondent on the issue of identification to the extent that, it is not in all circumstances that identification parade is necessary in order
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to properly identify suspect(s) who took part in the commission of a crime. A suspect or an accused person can ordinarily be identified without the need to mount a distinct parade of suspects to a crime at any stage in the course of an investigation.
Basically, whether an identification parade is necessary or not depends on the facts available to the investigating police officer at the time of the investigation and the necessity to have such a fully packaged identification parade. Thus, where no serious issue of identity of the suspect is raised from the facts available to the investigating police officer, it would be absurd to embark on large scale dramatic exercise, just for the sake of conducting an identification parade. See Igbi v. State (1998) 11 NWLR (Pt. 574) 419 @ 429, paragraphs F ? G.
?However, the need for an identification parade would be highly required under the following circumstances; where:
a. The accused was not arrested at the scene and he denies taking part in the crime; or
b. The victim did not know the accused before the commission of the crime; or
c. The victim was confronted with the accused for a short
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time; and/or
d. The victim due to time and circumstances of the incident could not have had full opportunity of observing the features of the accused.
See Sadiku v. State (2013) 11 NWLR (Pt. 1364) 191 @ 213; paragraphs E ? F.
Indeed, an identification parade would be useful and essential whenever there is doubt about the ability of a witness to recognize an accused person or when the identity of the accused person is in dispute.
In the instant case, it is not in doubt that the appellant herein denied taking part in the alleged armed robbery incident. He vehemently and consistently stated that he was neither part of the robbery attack nor heard of any such robbery incident. It is also on record that the complainant admitted not knowing the appellant before the robbery incident.
?Flowing from the above evidence on record, I am at the firm view that the circumstances of this case falls sufficiently and properly into the categories of the circumstances upon which an identification parade is required by law in order to properly ascertain if the appellant was actually the person who was seen by the said respondent?s witnesses as
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one of their attackers.
As I have earlier observed PW1 and PW2, who were direct eye witnesses and victims of the robbery incident were consistent in their statements to the police that they ran into a nearby compound upon the discovery that armed robbers were after them. They equally testified that the said robbery incident occurred in the night and there was no proper lightning except the bush lantern and flashes of lights from the head lamp of passing vehicles. I find it rather very difficult to believe the witnesses? evidence that they can properly identify their attackers with the mere aid of lights from the head lamps of passing vehicles, considering the fact that they both admitted in their testimony before the lower Court that they were terrified by the robbery incident.
I also find it difficult to believe that any person who is under such apprehension and in the circumstances of this case would be able to fully observe the features of his attackers and be able to so properly identify them subsequently thereafter with such a fleeting glance. My belief is further strengthened by the testimony of P.W.2. who claimed to properly observe the
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face of the appellant while the incident was going but could not give any other features (e.g. the cloth he was wearing or any other identification features) to substantiate his assertion.
Moreover, the evidence of both eye witnesses were contradictory on a material fact. The contradictions are as follows:
i. The statements of both witnesses at the police station (Exhibit A, B, C, D and E) stated that they ran into a nearby compound upon the discovery that armed robbers were after them which unfortunately they later discovered that the compound they ran into was the main hideout of the armed robbers, and they were able to see the faces of their attackers through lights from the head lamps of passing vehicles that flashed on the faces of their attackers who were inside the said compound.
ii. While P.W. 1 maintained this story line in his testimony in Court, P. W. 2 changed his, and stated at one point that they were attacked by the edge of the road, and at any other point that, he was already half way into the said compound. (See pages 113; 115; 127 and 129 of the record of appeal.)
It is well settled in law that where a trial Court is faced
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with substantial and/or fundamental contradictions between the evidence of a witness at the trial and his previous statement(s) on a material issue or issues crucial for the determination of the case in hand, the Court is left with only one option, namely, that it is unsafe to act on such unreliable evidence or the previous sworn or unsworn statement(s). In the result, the Court is obliged to reject both the previous statement(s) as well as the evidence of the witness during trial. A trial Court is not allowed in law to pick and choose between the two (2) versions. See Igbi v. State (1998) 11 NWLR 419 @ 431.
Also, it is trite law that where the evidence of the prosecution witnesses are materially contradictory, doubt is held to have been created in the prosecution?s evidence, and to which a Court of law is bound by virtue of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to resolve in favour of the accused person(s). See Kalu v. State (1988) 4 NWLR (Pt. 70) 503; Iregu v. State (2013) 12 NWLR (Pt. 1367) 92 @ 126. But before evidence is said to be contradictory in nature so as to create a doubt as to which of
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the two (2) alternative versions should be believed, it must be such as to change the course of events. The contradiction in this respect must be material and very fundamental. It must in other words imply that there are two (2) or more conflicting accounts or versions of the same incident. Contradiction can therefore be said to have occurred where one witness?s account of an incident is at variance with another?s account of the same incidents, such that accepting the account of one witness would mean rejecting the version of the other because both accounts are mutually exclusive and in conflict. See Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525 @ 562- 563, paragraphs H ? B.
The contradictions in the prosecution?s evidence highlighted above are material and fundamental, as they dwell substantially on the events leading to the identification of the appellant as one of the armed robbers who descended on the complaints. Thus, it is in my firm view point that these contradictions are fatal to the case of the prosecution, and have consequently created doubt in my mind which the lower Court must and should have resolved in favour of the
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appellant.
On the whole, I found that the circumstances of this case was one which identification parade is necessary and/or required to properly ascertain the identity of the appellant as one of the robbers who attacked the complainants. Failure to conduct the identification parade is fatal to the entire case of the prosecution.
On the issue of alibi, basically, when as accused raises the defence of alibi, what he is saying in essence is that when the offence for which he was being tried was committed, he was elsewhere. Thus, where a defence of alibi is promptly and properly raised by an accused with particulars of his whereabouts, it behoves on the investigating police officer to investigate it and disprove it, hence the failure or default in so doing would be held fatal to the case of the prosecution. See Onafowokan v. State (1986) 2 NWLR (Pt. 23) 496 @ 497, paragraphs E ? F.
An accused person would be adjudged to have properly discharged the evidential burden placed on him where he raised the plea of alibi at the earliest opportunity and gave vivid or detailed particulars of his whereabouts at the material time. See Iregu v. State
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(2013) 12 NWLR (Pt. 1367) 92 @ 128 ? 130; Sadiku v. State, (supra) 216; Odu & Anor. v. State (2001) 7 NWLR (PT. 664).
The appellant on the same day he was arrested made a statement at the Emene Police Station (Exhibit Y) and subsequently made another at the State C.I.D. (Exhibit U). The appellant?s statement and defence at the lower Court has been mainly that of alibi. As required by law, he promptly and properly raised the said defence of alibi, but the Investigating Police Officer (IPO) failed and/or neglected to investigate the said alibi.
?It is instructive to observe here that there were contradictions in the said statements. Whereas, he stated in Exhibit Y that he was in Idemili, Onitsha on the day of the robbery incident, but in Exhibit U he stated that he arrived the village where the incident took place on that same day, but that he was neither aware of the robbery incident nor took part in it. These contradictions on the face of it seems material, but at a proper look at each of the statements, the appellant denied taking part in the robbery incident and he gave vivid particulars of his whereabouts. It is instructive to note
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here that the statements were obtained by different police officers at different stations, and both admitted that they did not make any effort to investigate the alleged alibi.
Whereas, P.W.7 excuse for not so doing was that he received an order to transfer the case file, but P.W. 6 simply gave no cogent reason for refusing to investigate the appellant?s alibi. I am constrained to reiterate here that, in a matter of this nature, where the punishment for the offence is death penalty, the investigating police officer is under the responsibility to investigate all the defences raised by the accused, (especially alibi raised with vivid particulars), the failure and/or default of the said police officer is fatal to the case of the prosecution.
?Thus, it is my firm view point that the failure of the Investigating Police Officer to investigate the appellant alibi is fatal to the case of the respondent. I have earlier held that I do not believe the P.W.1 and P.W.2 story that they can effectively identify and/or recognize their attackers considering the circumstances of this case, and I do not wish to so depart. What more, the 1st accused person who
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the said witnesses claimed to have encountered on two (2) occasions that same evening and had ample opportunity to have observed properly than other; his alibi was investigated and confirmed. The said 1st accused person was discharged and acquitted by the lower Court on this basis, which suggests that the alleged recognition of the said 1st accused person by the said witnesses was indeed wrong. If the witnesses could be wrong about the 1st accused person, it is grossly unsafe to believe their claim of proper identification of the appellant who they encountered only at a fleeting glance.
Flowing from the above, I am of the humble but firm viewpoint that reasonable doubts have been created as to the involvement of the appellant in the said robbery incident. And in compliance with the settled position of the law, I hereby resolve the doubt in favour of the appellant. Thus, this issue is resolved in favour of the appellant.
?Having resolved the issues adopted for the determination of this appeal in the manner stated above, I am of the firm view that in cases such as the instant case where death is the penalty; it behoves on the learned trial judge to
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conclusively satisfy himself that the prosecution has completely and duly proved its case as required by law, that is, beyond all reasonable doubts.
After an exhaustive examination of the facts and the peculiar circumstances of this case, coupled with the application of the requisite laws and guided by binding authorities thereon, I am thus unable to agree with the decision of the learned trial judge and thereafter support and affirm the conviction and sentence imposed on the appellant herein. I am of the humble but firm view point that the appellant was wrongly convicted.
In the premise and for reasons set out above, this appeal is hereby found to have merit by me and it succeeds accordingly. The conviction and sentence of death imposed on the appellant by the lower Court in Charge No. E/5ART/98 are hereby set aside. In their place, I substitute and pronounce a verdict of discharge and acquittal of the appellant. The appellant shall be released forthwith.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, MASSOUD ABDULRAHMAN OREDOLA, J.C.A. I agree with reasoning,
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conclusions and orders therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by learned brother, MASSOUD ABDULRAHMAN OREDOLA, JCA. I agree with his reasoning and conclusions. I also hold that this appeal has merit and is accordingly allowed. I too set aside the decision of the trial Court convicting the appellant for armed robbery and sentence of death passed on him. I hereby discharge and acquit the appellant.
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Appearances
G.A. Akaraiwe, Esq. with him, E.W. Oji, Esq. and Jide Okonkwo, Esq.For Appellant
AND
Mrs. U. J. Chime (Senior Legal Officer Ministry of Justice, Enugu State) with, Bekue Edeh, Esq. (Legal Officer, Ministry of Justice, Enugu State) and C.C. Akubuilo Esq. (Legal Officer Ministry of Justice, Enugu State)For Respondent
