JOHN ELUSA EHIKWE v. THE STATE
(2018)LCN/12455(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2018
CA/B/455C/2013
RATIO
CRIMINAL LAW: INGREDIENTS OF MURDER
“Now dealing with issue 1, it is an established and trite principle of law that on a charge of murder under Section 319 (1) of the Criminal Code as in this case, it behoves the prosecution to prove beyond reasonable doubt:-
(a) That the deceased died.
(b) That the death of the deceased is as a result of the act of the accused person.
(c) That the act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See OGBA VS THE STATE (1992) 2 NWLR (PT. 222) 164; GIRA VS THE STATE (1996) 2 NWLR (PT. 428) 1; ADEKUNLE VS THE STATE (2006) 14 NWLR (PT. 1000) 717; IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) 1; IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
DEFENCE: DEFENCE OF ALIBI
“Alibi has been held to be a radical defence put up by a person suspected to have committed an offence and it simply means that an accused person was somewhere else at the time of the commission of the crime and could not have possibly been on the scene of a crime as to partake in it. See USONGO VS STATE (2013) LPELR 22747 (CA); OZAKI VS. THE STATE (1990) 1 NWLR (PT 124) 92; EYISI VS. THE STATE (2000) 12 SCNJ 104; AKPAN VS. THE STATE (2002) 5 SCNJ 301. Where the defence of alibi is raised by an accused person who also gave details of facts and circumstances of his whereabout during the time the alleged offence took place, the prosecution is under obligation to investigate such alibi in order to verify and ascertain its truthfulness or otherwise. Where the prosecution fails or neglects to investigate the facts and circumstances given by the accused person as to his whereabout during the commission of the crime alleged, the defence of alibi is deemed unrebutted and renders the acquittal of the accused person a possibility. See ALMU VS. THE STATE (2005) FWLR (PT. 283); GACHI VS. THE STATE (1965) NMLR 333; ODU VS. THE STATE (2001) 6 NSCQR 385.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE
“In relying on circumstantial evidence to determine the guilt of an accused person, the evidence relied upon must if accepted, make a complete and unbroken chain so as to constitute sufficient proof that the accused person committed the offence with which he is charged. See THE STATE VS. JOHN OGBUBUNJO (2001) 3 SCM 119; NWAEZE VS. STATE (1996) 2 NWLR (PT. 428) 1. In CHIMA IJIOFFOR VS. THE STATE (2001) 5 SCM 107, it was held by the Supreme Court that, circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which by undersigned co-incidence, is capable of proving a proposition with the accuracy of mathematics. In order to justify a conviction based on circumstantial evidence, it must lead to one conclusion, and that is the guilt of the accused person. Thus, where there are other possibilities that other persons than the accused had the opportunity of committing the offence with which the accused person is charged, such an accused, cannot be convicted of the offence. See UBANI VS. THE STATE (2003) 18 NWLR (PT. 851) 224.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
EVIDENCE: TAINTED WITNESS
“Now, it has been held that a tainted witness is a witness who has a grudge against an accused person. This may be by way of an old score to settle or an axe to grind or a purpose of his own to serve against the said accused person through the evidence. See OKORO VS. THE STATE (1988) 14 NWLR (PT 584) (181); MOSES VS. THE STATE (2006) 11 NWLR (PT 992) 458; OGUONZEE VS. THE STATE (1998) 5 NWLR (PT 551) 521; NDUKA VS. THE STATE (2013) LPELR (21199) CA. It is also correct to say that a trial Judge must be cautious and indeed warn himself during the consideration of the evidence of a tainted witness but it must be noted that mere relationship with a victim of a crime or even the accused does not automatically create the garb of a tainted witness. It therefore behoves the trial Judge who is in a strategic position to see and observe such witness to assess the evidence before reaching a conclusion whether or not such a witness is tainted as to warrant the trial Judge warning himself on the danger of relying solely on such evidence. See NDUKA VS. THE STATE supra; OGUNBAYO VS. THE STATE (2007) 8 NWLR (PT 1035) 157; AKALONU VS. STATE (2000) 2 NWLR (PT 643) 165.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
Before Their Lordships
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEINJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
JOHN ELUSA EHIKWEAppellant(s)
AND
THE STATERespondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State, Owa Oyibu Judicial Division and delivered by Ogisi J., on the 11th day of March, 2011, wherein the Appellant and three others were convicted for the offence of conspiracy to commit murder and murder, and sentenced to death by hanging.
The Appellant as the 1st accused person was charged with three others on a two count information as follows:
STATEMENT OF OFFENCE: COUNT 1
Conspiracy to commit Murder punishable under Section 324 of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
JOHN ELUSA EHIKWE (M), ALEX MORKA (M), FELIX AKABA AMECHI (M) and FRIDAY UGBEBOR (M) on or about the 29th day of September, 2008 Owa-Ofie village in the Owa ?Oyibu Judicial Division conspired amongst yourself to commit felony to wit: murder.
STATEMENT OF OFFENCE: COUNT II
Murder punishable under Section 319 of the Criminal Code Cap 48 vol. II Laws of the defunct Bendel State of Nigeria as applicable to Delta State.
PARTICULARS OF OFFENCE
JOHN ELUSA EHIKWE (M), ALEX MORKA (M), FELIX AKABA AMECHI (M) and FRIDAY UGBEBOR (M) on or about the 29th day of September, 2008 Owa-Ofie village in the Owa?Oyibu Judicial Division murdered one Esther Uzoka (f).
At the trial of the case which commenced on the 24/7/2009, the prosecution called five witnesses to prove its case while each of the accused persons testified in their own defence and did not call any witness.
At the conclusion of taking evidence, counsel for the parties filed and exchanged written addresses which they subsequently adopted and relied on.
In a judgment delivered on the 11th day of March, 2011 the learned trial Judge found all the accused persons guilty of the two counts of conspiracy to commit murder and murder. They were each sentenced to death by hanging.
Being expectedly aggrieved with the said judgment the Appellant filed a notice of appeal containing three grounds of appeal on the 16/5/2012. The parties subsequently filed and served their respective briefs of arguments which they eventually adopted and relied on at the hearing of the appeal on 3/5/2018.
In the Appellant’s brief of argument filed on 6/6/2017 but deemed properly filed on 29/1/2018 the following two issues were distilled for determination.
‘(1) Whether the learned trial Court (sic) in the peculiar circumstance and facts of this case was right and from the grounds in relying on the lone evidence of the tainted witness to convict the Appellant for the capital offence of murder.
(2) Whether having regard to the serious nature of the charge alleged against the Appellant, the learned trial Court (sic) was right when it failed to consider the defence of alibi raised by the Appellant and make a proper finding on the same.’
The Respondent’s brief of argument was filed on 30/1/2018 and two issues were also formulated therein for determination as follows:
(1) Whether the learned trial Judge was right in law when she held that the prosecution proved the case of conspiracy to murder and murder against the Appellant beyond reasonable doubt?
(2) Whether in view of the facts on record the learned trial Judge was wrong when she held that the defence of alibi did not avail the Appellant?
The two issues raised in the parties brief of argument are not dissimilar but for the purpose of this appeal I will adopt the two issues as raised in the Appellant’s brief of argument.
ISSUE 1
Herein learned counsel for the Appellant reviewed the evidence of the PW1 as adduced before the trial Court to submit that the PW1 is nothing more than a tainted witness whose evidence ought to be cautiously considered by the learned trial Judge. On this he cited the case of UNIVERSITY OF IBADAN TEACHING HOSPITAL MANAGEMENT BOARD VS. ALUKO (1996) 3 NWLR (PT. 434) 86 and ABAYOMI OLALEKAN VS. STATE (2001) 92 LRCN 3385.
Further reference was made to the testimony of the Appellant to show that there was no love lost between him and the PW1 with whom he has had series of altercations and disagreements and this includes the fact that the Appellant is the provost of the community vigilant group while the PW1 is a notorious individual who has been involved in various crimes in the community necessitating his being put on oath by the king of his community to abstain from crime.
It was also contended that based in the testimony of the PW1 that the Obi of his community had made him swear to an oath that if anybody sees anything and fails to report same the person will die. But ironically the PW1 did not report the fact that the Appellant earlier gave him the sum of N50,000 to assassinate the wife of one Mr. Monday Ehianuka to the Obi or to the police, yet the trial Court relied on such evidence to hold that the prosecution proved its cases beyond reasonable doubt.
Referring to the evidence of the PW2 and PW3, it was submitted that they are nothing but hearsay evidence being repetitions of what the PW1 told them, that he knows the people who killed the deceased, hours after the corpse of the deceased had been removed by the police.
He added that even the failure of the police to verify the blood stain on the grass where the PW1 alleged that the Appellant cleaned the knife is very fatal to the case of the prosecution.
It was further submitted that in the absence of the evidence of the PW2 and PW3 which are entirely hearsay, there is no other evidence to corroborate the evidence of the PW1 whose action and evidence are inconsistent with natural course of events, particularly with regard to his story about seeing a group of people murder the deceased and did not bother to call the members of the community or the leaders to the scene but rather chose to only let members of his family to know about it. It was then urged on this Court to resolve the issue in favour of the Appellant.
ISSUE 2
Dwelling on this issue, learned counsel analysed the concept of alibi and supported same with the case of OLOMU VS. THE STATE (2005) All FWLR (PT. 63) and SHEHU VS. THE STATE (2010) All FWLR (PT. 523) 1841.
He then submitted that in the instant case the Appellant raised the defence of alibi in his extra-judicial statement but same was investigated by the police and no explanation was given for the prosecution’s failure to investigate the said alibi.
Learned counsel also referred to the finding of the learned trial Judge to the effect that the Appellant did raise the defence of alibi but ended up concluding that the said alibi did not avail the Appellant. It was then contended that the learned trial Judge was wrong to so hold because it is not for him to give explanation on behalf of the prosecution on why the alibi was not investigated and the failure by the prosecution to investigate it amounts to failure to prove the case against the Appellant beyond reasonable doubt as held in SHEHU VS. THE STATE supra. This Court was then urged to resolve the issue in favour of the Appellant and allow the appeal.
Replying on issue 1, learned counsel for the Respondent submitted that the learned trial Judge rightly held that the prosecution proved the case against the Appellant beyond reasonable doubt. After pointing out the different modes of proof in criminal cases with particular reference to murder charges, it was submitted that the ingredients of the offence of murder were proved by credible evidence as adduced by the prosecution witnesses and by circumstantial evidence.
It was also posited that the fact that the deceased died is not in dispute but the contention by the Appellant is that he was not at the scene of crime when the deceased was murdered and that it was wrong for the learned trial Judge to rely on the evidence of the PW1.
In this regard, learned counsel referred to the evidence of the PW1 at pages 4 to 9 of the records as well as the findings of the learned trial Judge at page 85.
On the Appellant’s contention that the PW1 is a tainted witness, learned counsel referred to the definition of a tainted witness by the Supreme Court in the case of ALI VS. STATE (2015) LPELR 24711 that:
‘A tainted witness is a witness who may not be an accomplice but who by the evidence he gives (whether as a witness for the prosecution or for the defence) may be regarded as having some purpose of his own to serve.’
The following authorities were also cited in support. OGUONZEE VS. STATE supra; ITU VS STATE supra; ISHOLA VS STATE (1978) NSCC 499 at 509; OMOTOLA VS STATE (2009) LPELR 2663 (SC); USMAN VS THE STATE supra.
Further reference was made to the finding of the learned trial Judge on the issue as detailed in page 86 of the record and this Court was urged not to disturb the said findings because it was based not only on the evidence of the PW1 but also on circumstantial evidence.
On the issue of corroboration, it was submitted that except for some statutory exceptions no number of witnesses is needed before a Court can convict an accused person for the offence charged and the Court can convict on the uncorroborated evidence of one witness if such evidence is cogent and believed by the Court. Vide ITU VS. THE STATE supra.
He added that the fact that the PW1 had a previous quarrel with the Appellant did not make him a tainted witness whose evidence needs corroboration.
On issue 2, learned counsel exhaustively analysed the principles guiding the defence of alibi and cited in support, the case of PATRICK NJOVENS VS. THE STATE (1973) NMLR 331; and ONUCHUKWU VS. STATE (1998) 4 NWLR (PT. 547) 576.
He then submitted that there is evidence on record that the PW1 fixed the Appellant and other accused persons at the scene of crime on the 29/9/2008 and this dislodged whatever defence of alibi raised by the Appellant.
On the Appellant’s complaint that the learned trial Judge did not make a proper finding on the defence of alibi as raised by the Appellant, it was submitted that the learned trial Judge properly and exhaustively considered the said defence as shown at page 85 of the record before reaching a conclusion that the said defence does not avail the Appellant. It was then urged on this Court to resolve the two issues against the Appellant and dismiss the appeal.
The Appellant’s reply brief of argument was filed on 3/5/2018. It is a three page reply and the submissions therein will be addressed as the need arises.
Now dealing with issue 1, it is an established and trite principle of law that on a charge of murder under Section 319 (1) of the Criminal Code as in this case, it behoves the prosecution to prove beyond reasonable doubt:-
(a) That the deceased died.
(b) That the death of the deceased is as a result of the act of the accused person.
(c) That the act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See OGBA VS THE STATE (1992) 2 NWLR (PT. 222) 164; GIRA VS THE STATE (1996) 2 NWLR (PT. 428) 1; ADEKUNLE VS THE STATE (2006) 14 NWLR (PT. 1000) 717; IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) 1; IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100.
In the instant case and as rightly found by the learned trial Judge, the fact that the deceased died is not in dispute given the evidence of PW1 and the PW5, the Medical Doctor who performed the post-mortem examination on the deceased and whose testimony was not challenged or discredited by the Appellant. On this, the learned trial Judge held at page 13 of the record that:-
‘The person postulated as the deceased in this case is Esther Uzoka (f). The fact that the deceased is dead is not disputed by all the parties and Exhibit P11 shows that the deceased had died.’
PW5, the Medical doctor testified inter alia that:-
‘The cause of death is the cut off (sic) of air which resulted in the woman not able to breath and the bleeding from the jugular vessels that was cut. The document (Exhibit P11) shown to me is the medical report.’
From the above set out finding of the learned trial Judge and the evidence of the PW5 who performed the post-mortem examination, I am therefore inclined to agree that Mrs. Esther Uzoka actually died on the 29/9/2008.
The other two ingredients for the proof of the offence of murder are however being challenged by the Appellant with the contention that they were not proved beyond reasonable doubt especially with the tag on the PW1 as a tainted witness who had an axe to grind with the Appellant.
The Learned trial Judge, after an exhaustive review of the evidence of the prosecution witnesses particularly that of the PW1 vis–vis that of the Appellant held at pages 85 to 86 of the Record as follows:-
‘I had the opportunity to observe the demeanor of the PW1, he appears to me to be saying exactly what he saw and more or less concluded that the four accused persons killed the deceased having seen them in the premises with 1st accused holding a blood stained knife. Having seen the movement and actions of the accused persons particularly the 1st accused the PW1 is emphatic that the accused persons killed the deceased.
The defence counsel also argued that the PW1 is a tainted witness having told Court that the 1st accused have given him the sum of N50,000.00 to kill one Monday Ehianuka’s wife and told the PW3 that the offer of the N50,000.00 was to kill the deceased. Counsel also referred to the evidence of the PW4 to the effect that the husband of the deceased told him that it is only the PW1 that he had problem with and submitted that the PW1 is a tainted witness.
In the case of STEPHEN OTEKI VS THE STATE (1986) 4 SC 224 AT 250 Karibi-White said:-
‘The facts that this witness had other personal interest to serve is by itself not sufficient to reject such evidence. The effect of such interest is to place the trial Judge at his guard to warn himself as the veracity of the evidence’.
From the above pronouncement, the evidence of a tainted witness ought to be narrowly examined, suspiciously regarded and cautiously accepted. I have examined the evidence of the PW1 and applied the strict test just highlighted to it. The PW1 testified under cross examination that the 1st accused offered him the sum of N50,000.00 to kill the wife of one Monday Ehianuka, he rejected the offer and told the 1st accused that he is not a killer. The PW1 may be a person with a questionable character as portrayed by the 1st accused person. I have deliberately not relied on the evidence of the PW2 and PW3. The reason being that as human beings, one is most likely not to re-state a story told to him without a change in its con and content. The PW1 was firm in his reply to the suggestion that he told lies against the 1st accused that he gave him money to kill the wife of Monday Ehianuka. The question that comes to mind is, what purpose does the PW1 have to serve being a tainted witness. I cannot find anything from the totality of the evidence before me that the PW1 has any purpose to serve. Is the purpose of the PW1 to put the 1st accused away for daring to accuse him of stealing. I do not think so. The PW1 may not be very intelligent in the manner he answered questions but then he appears to me to have told the Court what he saw, which I believe is the truth. The PW1 does not appear to me to have fabricated the evidence as told to Court.
(Underline is mine for emphasis)
As rightly held by the learned trial Judge, a perusal of the evidence of the PW1 at pages 4 to 5 of the Record of appeal shows that it is direct, positive and devoid of any cloudiness with regard to his account of what he saw and observed on the 29/9/2008 with regard to the Appellant and three others, but with specific reference to the Appellant, who was the 1st accused at the trial Court, the PW1 gave a graphic account of what he saw him do in the deceased’s compound. He did not mince words while testifying about how on the 29/9/2008 he went to check the traps he set along Abavo/Warri Road and how he saw two motorcycles and then the 2nd accused hiding under a palm tree in the deceased’s compound. He testified further as follows:-
‘As I was trying to come out of the bush to the road, I saw the 2nd accused person. The 2nd accused hid under a palm tree in the compound of the deceased woman. The 2nd accused person whistled, and Felix and Friday jumped over the fence of a petrol filling station. The filling station is along Abavo road and shares common boundary with the house of the deceased. Felix and Friday are the 3rd and 4th accused in the dock. Felix?s father?s name is Amechi. Friday’s name is Okwufurueze. Friday also bears Ugbebor. I later saw the 1st accused running out of the compound of the deceased, and his hands were blood stained. He also had a knife with him. The knife is like dagger. He cleaned the knife with the grass on the field along the new road Abavo road. He put the dagger in his waist behind the waist belt. When the accused persons left I went to the compound of the deceased and saw the deceased in the pool of her blood and a bicycle was laid on her body. Felix and Friday (3rd and 4th) accused boarded a motor-cycle and moved towards Agbor and the 1st and 2nd accused persons boarded motorcycle and rode toward Abavo. I left to inform one of my relations Emeka Iwe. Emeke called Shedrack. When Shedrack came he gave me N100 to go to the palace of the Obi of Owa. I told Emeke that some person have killed somebody at Owa-Ofie. I mentioned the name of the accused persons to Emeke. I went to the Obi of Owa. When I got to the Obi?s palace, I reported what I saw to the Obi, because he has made us to take oath that if we see anything bad and we fail to report to him, we will die. The Obi called the Divisional Police Officer (D.P.O). the DPO came and I told him what I told the Obi. The DPO called his men and I went in their company to Owa-Ofie to arrest the accused persons, we arrested the 1st and 2nd accused persons. The 3rd and 4th accused persons packed their belongings and left for Benin. We arrested Friday (4th accused) in Benin and the 3rd accused was arrested at Emuhu. The deceased throat was cut when I saw her body.’
The above set out testimony of the PW1 which was not discredited during cross examination clearly showed the activities of each of the accused persons he saw on that fateful day in the deceased’s compound. Granted that the PW1 was not an eye witness to the actual killing of the deceased on that 29/9/2008 but the scenario presented gives room for the consideration of circumstantial evidence in deciding the guilt of the Appellant and the learned trial Judge cannot be faulted in this regard. There is no evidence led to show that the Appellant or any of his accomplices live in the same compound with the deceased’s family or even within the vicinity of the compound. Secondly, he was seen running out of the compound and his hands were stained with blood. Thirdly, he had a knife with him and he was seen cleaning the said knife with the grass on the field along the new Abavo Road. Thereafter he put the knife in his waist belt before going away.
Furthermore, when the Appellant and his accomplices left the scene, the PW1 went into the deceased’s compound where he saw the deceased in the pool of her blood and her bicycle was laid on her body. The PW1 also clearly stated how the Appellant and the others left the scene.
While the 3rd and 4th accused persons boarded one of the motorcycles and rode towards Agbor, the Appellant and the 2nd accused climbed the second motorcycle and rode towards Abavo.
In relying on circumstantial evidence to determine the guilt of an accused person, the evidence relied upon must if accepted, make a complete and unbroken chain so as to constitute sufficient proof that the accused person committed the offence with which he is charged. See THE STATE VS. JOHN OGBUBUNJO (2001) 3 SCM 119; NWAEZE VS. STATE (1996) 2 NWLR (PT. 428) 1. In CHIMA IJIOFFOR VS. THE STATE (2001) 5 SCM 107, it was held by the Supreme Court that, circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which by undersigned co-incidence, is capable of proving a proposition with the accuracy of mathematics. In order to justify a conviction based on circumstantial evidence, it must lead to one conclusion, and that is the guilt of the accused person. Thus, where there are other possibilities that other persons than the accused had the opportunity of committing the offence with which the accused person is charged, such an accused, cannot be convicted of the offence. See UBANI VS. THE STATE (2003) 18 NWLR (PT. 851) 224.
The main complaint of the Appellant is that the PW1 whose evidence formed the bedrock of the prosecution?s case is a tainted witness in the sense that he has been at loggerheads with the Appellant and they have been involved in one clash or the other.
The learned trial Judge duly addressed the issue and came to the following conclusion at page 86 of the Record:-
‘The PW1 was firm in his reply to the suggestion that he told lies against the 1st accused that he gave him money to kill the wife of Monday Ehianuka. The question that come to mind is, what purpose does the PW1 have to serve being a tainted witness. I cannot find anything from the totality of the evidence before me that the PW1 has any purpose to serve. Is the purpose of the PW1 to put the 1st accused away for daring to accuse him of stealing. I do not think so. The PW1 may not be intelligent in the manner he answered questions but then he appears to me to have told the Court what he saw, which I believe is the truth. The PW1 does not appear to me to have fabricated the evidence as told to Court.’
From the evidence before the trial Court as presented by the parties including the cross examinations involved, I cannot but endorse the finding of the learned trial Judge who saw, observed and analysed the conduct and demeanour of the witnesses first hand and was in a better position to make a proper assessment which by standard legal procedure cannot be interfered with by this Court. See HARUNA VS. A.G. OF THE FEDERATION (1991) 6 SCNJ 33; SAGAY VS SAJERE (2000) 4 SCNJ 383; AJIBOYE VS. ISHOLA (2006) 6 SCNJ 180; MR AUDU OTUKPO VS. AKPAN JOHN & ANOR. (2012) 3 SC (PT 14) 40.
Now, it has been held that a tainted witness is a witness who has a grudge against an accused person. This may be by way of an old score to settle or an axe to grind or a purpose of his own to serve against the said accused person through the evidence. See OKORO VS. THE STATE (1988) 14 NWLR (PT 584) (181); MOSES VS. THE STATE (2006) 11 NWLR (PT 992) 458; OGUONZEE VS. THE STATE (1998) 5 NWLR (PT 551) 521; NDUKA VS. THE STATE (2013) LPELR (21199) CA.
It is also correct to say that a trial Judge must be cautious and indeed warn himself during the consideration of the evidence of a tainted witness but it must be noted that mere relationship with a victim of a crime or even the accused does not automatically create the garb of a tainted witness. It therefore behoves the trial Judge who is in a strategic position to see and observe such witness to assess the evidence before reaching a conclusion whether or not such a witness is tainted as to warrant the trial Judge warning himself on the danger of relying solely on such evidence. See NDUKA VS. THE STATE supra; OGUNBAYO VS. THE STATE (2007) 8 NWLR (PT 1035) 157; AKALONU VS. STATE (2000) 2 NWLR (PT 643) 165.
In the instant case, after a proper scrutiny of the evidence before the Court, the learned trial Judge concluded (as earlier set out in this judgment) that the PW1 cannot be classified as a tainted witness in which case the precaution expected to be taken by a trial Judge in such circumstance does not come into play here, notwithstanding the fact that the learned trial Judge herein went the extra mile by applying the ‘strict test highlighted in the case of OTEKI VS THE STATE (1986) 4 SC 224 at 250.’
The bottom line here is that I endorse the finding of the learned trial Judge to the effect that the PW1 is not a tainted witness, moreso that there are other accused persons in the matter with whom it cannot be said that he had an axe to grind.
On the whole, this issue is resolved against the Appellant.
On issue 2, that is, whether having regard to the serious nature of the charge alleged against the Appellant, the learned trial Judge was right when it failed to consider the defence of Alibi raised by the Appellant and make proper finding on the same.
Firstly, it is settled law that a trial Judge has a duty to consider all the evidence before him, the more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt. Thus a trial Court must consider the evidence adduced by the prosecution and the accused person, evaluate all evidence, before it can say that the case was proved beyond reasonable doubt. Failure to consider the accused person’s case is a denial of justice and will be fatal to the prosecution’s case. See YUNUSA ADAMU VS. THE STATE (1991) 6 SCNJ 33 and ADEWALE JOSEPH VS. THE STATE (2011) 6-7 SC (PT V) page 1.
The Appellant’s assertion is that the learned trial Judge was wrong to have held that the defence of alibi did not avail the Appellant without asking the prosecution why it did not investigate the alibi set up by the Appellant but rather proceeded to furnish explanation for such omission instead of standing as an umpire and not a witness.
On the vexed issue of alibi, the learned trial Judge held at page 86 of the Record as follows:-
On the issue of alibi, the defence counsel for the 4th accused person Mrs. N.P. Ifada contended that the police to whom the 4th accused made statement of his where about at the time of the crime did not investigate the alibi raised. This counsel contended, is fatal to the case of the prosecution.
All the accused persons raised the defence of alibi in their evidence. The prosecuting counsel on the defence of alibi submitted that there is evidence of the prosecution fixing the accused persons to the scene of crime at the material time. He referred to the case of ODU VS THE STATE (2001) FWLR (PT 31) 1078 at 1093. The accused were identified by the PW1 as those who killed the deceased by strong, cogent and compelling circumstantial evidence. It is also in evidence that the 1st accused person was in Owa-Ofie at about 8.30am when he went to buy recharge card from one Sunday Agholor. The defence of alibi in this circumstance does not avail the accused persons.
What can be gleaned from the above set out findings by the learned trial Judge is that, though the fact whether or not the alibi raised by the Appellant was investigated by the Police was not specifically commented on. It was however clearly stated that the evidence adduced by the prosecution witness (PW1) fixed the Appellant at the scene of crime, thereby weakening the defence of alibi.
Alibi has been held to be a radical defence put up by a person suspected to have committed an offence and it simply means that an accused person was somewhere else at the time of the commission of the crime and could not have possibly been on the scene of a crime as to partake in it. See USONGO VS STATE (2013) LPELR 22747 (CA); OZAKI VS. THE STATE (1990) 1 NWLR (PT 124) 92; EYISI VS. THE STATE (2000) 12 SCNJ 104; AKPAN VS. THE STATE (2002) 5 SCNJ 301.
Where the defence of alibi is raised by an accused person who also gave details of facts and circumstances of his whereabout during the time the alleged offence took place, the prosecution is under obligation to investigate such alibi in order to verify and ascertain its truthfulness or otherwise. Where the prosecution fails or neglects to investigate the facts and circumstances given by the accused person as to his whereabout during the commission of the crime alleged, the defence of alibi is deemed unrebutted and renders the acquittal of the accused person a possibility. See ALMU VS. THE STATE (2005) FWLR (PT. 283); GACHI VS. THE STATE (1965) NMLR 333; ODU VS. THE STATE (2001) 6 NSCQR 385.
Nonetheless, in situations where the prosecution adduces sufficient cogent and acceptable evidence fixing the accused person at the scene of crime, then his alibi crumbles and that will be sufficient to render such plea of alibi inefficient as a defence. See NJOVENS VS. THE STATE (1973) 1 NMLR 330; ARCHIBONG VS. THE STATE (2006) All FWLR (PT. 323) 1747.
In the instant case, the Appellant’s complaint that the alibi raised by him was not investigated do not seem to be correct given the evidence of the PW4 under cross-examination by counsel for the 2nd and 3rd accused persons wherein he stated at pages 23 to 24 of the record that:
‘The 2nd accused said in his statement that he went to buy recharge card from the house of one Sunday Agholor and that he went there with 1st accused between 7 am and 11am on the day of the incident. I cannot remember the exact time he went to Sunday Agholor. I contacted Sunday Agholor and he made a statement and said both 1st and 2nd accused persons came to his house at about 7am and spent about 10 minutes with him.’
If the said evidence of the PW4 is anything to go by, it means that there is inconsistency with respect to the time the Appellant stated in Exhibit P2 that he went with 2nd accused to the house of the said Sunday Agholor which is about 8.30am. The information received by the PW4 from Sunday Agholor was that they came to his house around 7am and spent about 10 minutes with him. The time differential does not really add up.
Nonetheless, the PW1 adduced cogent and compellable evidence fixing the Appellant and his accomplice at the scene of the murder of the deceased at about 8am on the 29/9/2008 and I agree with the finding of the learned trial Judge that the defence of alibi in the circumstance did not avail the Appellant, same having been demolished. This issue is accordingly resolved against the Appellant.
Accordingly, this appeal is found to be unmeritorious and it is accordingly dismissed.
The judgment of the High Court of Delta State, delivered by C.O. Ogisi J., on the 11th day of March, 2011 in Charge No. HCY/9C/2009 is hereby affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA.
The two issues identified in the appeal have been elaborately discussed in the leading judgment and my learned brother has given comprehensive reasons for resolving them against the appellant. I agree with the reasoning and conclusions of my learned brother, which I adopt as mine, and I also dismiss this appeal for lacking merit.
I affirm the judgment of the trial Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA, granted me the privilege of reading in draft the lead judgment just delivered. I am in complete agreement with the entire judgment. Accordingly, I adopt it as mine and I also dismiss the appeal.
I abide by the consequential order in the lead judgment.
Appearances:
Miss B.O. AbolodjeFor Appellant(s)
O.F. Enenmo Director Appeals, Ministry of Justice, Delta State with him, C. Agbagwu, Asst DirectorFor Respondent(s)
