JOHN OTA OGBAGA v. THE STATE
(2016)LCN/8277(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of March, 2016
CA/E/469C/2014
RATIO
PRACTICE AND PROCEDURE: WHETHER IT IS THE FUNCTION OF COURT TO MAKE OUT A CASE FOR THE PARTY AND THE EFFECT OF THE FAILURE OF A PARTY TO RAISE THE DEFENCE OF ALIBI
Even where counsel addresses Court that an accused person was not at the crime scene as at the time the crime was committed, in the absence of an express defence of alibi, Counsel cannot address Court on the issue of alibi. It is not the function of Court to make out a case for a party. That would amount to judicial busybody and sheer overzealousness on the part of the Court. Where the defence of alibi was not raised, the issue of investigating same is of none effect. per. RITA NOSAKHARE PEMU, J.C.A.
CRIMINAL LAW: WHETHER THERE MUST BE A NEXUS BETWEEN THE ACCUSED PERSON AND THE COMMISSION OF THE CRIME
In a criminal charge, the act of the accused person must be tied to the commission of the crime. There must be a nexus between the accused person and the crime purportedly and indeed allegedly committed. It is the duty of the prosecution to prove its case beyond reasonable doubt. per. RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU 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
JOHN OTA OGBAGA Appellant(s)
AND
THE STATE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Ebonyi State presided over by Hon. Justice P. O. Elechi of the Abakaliki Judicial division delivered on the 28th of June 2013.
In it, the Appellant JOHN OTA OGBAGA was convicted for the offence of Arson, and sentenced to seven years imprisonment. – Pages 136-153 of the Record of Appeal.
FACTS OF THE CASE – The Appellant and five other persons were alleged to have willfully and unlawfully set fire on the dwelling house of one Michael Onyibe on the 23rd day of May 2011.
They were therefore arraigned before the High Court of Ebonyi State, Abakaliki.
The Prosecution, at the trial called four witnesses and tendered 7 (seven) exhibits, A, B, C, D, E, F and G respectively, while the accused (Appellant) called 14 (fourteen) witnesses and tendered four exhibits; B1, B, J and H respectively.
The case of the Prosecution is that on the 23rd of May 2011 the Appellant and five others conspired among themselves to set fire on the house of one Michael Oyibe.
The Appellant had raised the defence of
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Alibi.
One Ugo Nwogbaga made a statement to the Police to the effect that after they got information that some people were burning the house of the complainant, they visited the scene of the burning house to apprehend the culprits, but they all escaped. The statement is Exhibit “D”.
At the end of the trial, the learned trial Judge rejected both the defence of Alibi raised and Exhibit D, thereby convicting the Appellant for arson and sentenced him to seven years imprisonment.
Dissatisfied, the Appellant has appealed the decision, and pursuant to the Practice Direction of this Honourable Court, filed a Notice of Appeal on the 19th of September 2013, encapsulating two Grounds of Appeal. They are –
GROUND ONE
“The learned trial Judge erred in law when he dismissed the case Alibi and part forward by the accused person on his defence in the charge of Arson made against the accused person.”
GROUND TWO
“The learned trial Judge erred in law when he held without proof that the accused was the person that set fire on the properties notwithstanding the age long case of village authorizing that both parties accepted it
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exist, which metamorphose to this malicious allegation.”
– Page 154-157 of the Record of Appeal.
The Appellant had sought extension of time to compile and transmit the Record of Appeal, vide motion on notice filed on the 24th of July 2015. Same was granted on the 28th of January 2016. Therefore the Record of Appeal was deemed compiled and transmitted to this Honourable Court on the 28th of January 2016.
The Appellant’s brief was filed on 10th of October 2014, but same was deemed filed on the 28th of January, 2016. It settled by Sir Ejike Ezenwa.
The Respondent’s Brief of Argument was deemed filed on the 28th of January 2016. It is settled by Rt. Hon. Augustine N. Nwankwagu, Attorney-General, Ebonyi State.
On the 28th of January 2016, the respective parties adopted their Briefs of Argument.
The Appellant had in his brief distilled two issues for determination from the Grounds of Appeal. They are ?
1) WHETHER THE DEFENCE OF ALIBI WAS ADEQUATELY CONSIDERED IN VIEW OF THE EVIDENCE BEFORE THE TRIAL COURT.
2) WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILFULLY AND
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UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL OYIBE BEYOND REASONABLE DOUBT.
The Respondent adopts the Appellants issue for determination in its entirety, but adds another issue for determination in his brief of Argument which is ?
“WHETHER THE APPELLANT CAN RAISE FRESH ISSUE ON APPEAL WITHOUT THE LEAVE OF THIS COURT.”
The Arguments advanced by the Appellant in CA/E/471C/2014 SIMON MBAM AND THE STATE is reproduced verbatim in the Appellants brief in this present Appeal.
Same applies to the respondent brief. The Appellant in CA/E/47/C/2014 is represented by same Counsel as in this present appeal. He is Sir Ejike Ezenwa.
The Respondent in CA/E/471C/2014 is represented by Rt. Hon. Augustine N. Nwankwagu – the Hon. Attorney General of Ebonyi State.
I shall therefore consider this Appeal, adopting my reasoning and conclusions in CA/E/471C/2014, as the facts are the same in all its ramifications.
Indeed, learned Counsel for the Respective parties had advanced the same arguments as they did in CA/E/471C/2014.
Howbeit, I shall consider the issues proffered by the Appellant for determination,
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and see how they present.
ISSUE NO. 1
It is apparent that the Appellant made two statements to the Police – one made on the 3rd of June 2011 – Exhibit “J”.
The other was made on the 6th of June 2011, but was not tendered in Court.
A painstaking look at Exhibit “J”, it seems to me that the defence of alibi was never raised by the Appellant.
The Appellant, on the 24th of April 2013 testified as DW1.
-Pages 118-119 of the Record of Appeal.
No where did he testify raising the defence of alibi.
Curiously in the Judgment of the lower Court, the learned trial Judge touched on the issue of ALIBI. Indeed, the lower Court blanketly considered the issue of Alibi with regard to all the accused persons (including the Appellant) before him, regardless of whether each accused person raised the defence of alibi or not, and that was a gross error on the part of the learned trial Judge. Where the Court fails to properly evaluate evidence on record or erroneously does so or the conclusion reached is not supported by the evidence on record, then the Court of Appeal must exercise its powers, by reviewing the findings and draw
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the appropriate inference from the proved facts.
NEPA v. IHAMEJI (2002) 11 NWLR (Pt. 778) 379 @ 427.
Even where counsel addresses Court, that an accused person was not at the crime scene as at the time the crime was committed, in the absence of an express defence of alibi, Counsel cannot address Court on the issue of alibi. It is not the function of Court to make out a case for a party. That would amount to judicial busybody and sheer overzealousness on the part of the Court. Where the defence of alibi was not raised, the issue of investigating same is of none effect.
Let me reproduce the error in the observation of the lower Court. At Page 11 of the Judgment (Page 146 of the Record of appeal) the lower Court observed thus –
“This plea of Alibi by the accused persons was never raised by the accused person in their statements to the police in Exhibit B-G.”
?
The Appellant’s statement is Exhibit “J”. Whatever observation the lower Court made therefore on the issue of alibi must come to nought and irrelevant, as it affects the Appellant.
The Respondents issue No 3 is therefore of no moment and misconceived.
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This issue No 1 is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2
WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILFULLY AND UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL OYIBE BEYOND REASONABLE DOUBT.
The key witnesses whom the prosecution relied on are PW1 and PW2 respectively.
PW1 in his evidence did say that he saw the Appellant as one of those that came to his house on the 23/5/2011 at about 12:15 pm.
He said they poured fuel on his motorcycle and on his house. That it was the Appellant that lit the fuel soaked shirt.
Under cross-examination PW1 had this to say inter alia –
“I have never had problems with the accused persons before I was not home before as to know the records of the accused persons but it was when they came to my house that I got to know them.”
Now, from this piece of evidence, it is evident that this witness PW1 had never met the Appellant before that date. Why then did he say that it was the Appellant that lit the wet cloth soaked in fuel?
I find this piece of evidence very suspect and not
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credible.
In a criminal charge, the act of the accused person must be tied to the commission of the crime. There must be a nexus between the accused person and the crime purportedly and indeed allegedly committed.
It is the duty of the prosecution to prove its case beyond reasonable doubt.
The evidence of PW2 is neither here nor there. He said ?
“When I reached at the scene with a bucket of water, all the accused persons pointed a gun at me. Also others who are not here.”
How can ALL THE ACCUSED PERSONS point one gun at him?
He also said ?
“I could not tell the hour of the day that I was attacked but I know that I was woken up from sleep as a result of the incident, but it is about 9 – 10 pm.”
Pertinent to note that while PW1 said the attack took place at about 12:15 midnight of the 23/5/2011, PW2, fixed the time of the incident at 9-10 pm. This is a gross contradiction which was not resolved by the prosecution in re-examination in Court.
There is nothing to show whether there was adequate light to enable PW1 and PW2 identify the Appellant on that night.
There are many
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doubts operating on the mind of this Honourable Court as to the linking of the Appellant to the commission of the crime.
At Page 2 of the Record of Appeal, the Appellant was charged with the offence of Arson contrary to Section 443 (a) of the Criminal Code Law Cap 33 Vol. 1. Laws of the Ebonyi State of Nigeria 2009 simpliciter.
The prosecution had left a lot of gaping doubts in its trial and it is not the function of this Honourable Court to fill in the gaps for him.
The Prosecution had a duty to prove its case beyond reasonable doubt. This he had not done. There is nothing before Court to show that a structure was burnt. There is nothing to link the Appellant to the crime. There is no positive identification of the Appellant by the witness particularly PW1 and PW2, whose evidence I find not credible.
?
Consequently Issue No. 2 must be resolved in favour of the Appellant and against the Respondent and same is hereby resolved in favour of the Appellant.
The result is that the Appeal succeeds and the judgment of Hon. Justice P. O. Elechi delivered on the 28th of June 2013 at the High Court of Ebonyi State Abakaliki Judicial
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Division in charge No. HAB/6C/2012 is hereby set aside, while the Appellant JOHN OTA OGBAGA is hereby discharged and acquitted.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, NOSAKHARE PEMU JCA. I agree with reasoning, conclusions and orders therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft the lead judgment prepared by my learned brother, RITA NOSAKHARE PEMU, JCA. The facts of the case and all the issues raised in this appeal are set out and examined therein. I therefore agree with the conclusion reached in the lead judgment that the appeal should succeed. I also allow the appeal and abide by the consequential orders made therein.
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Appearances
Ejike Ezenwa, Esq.For Appellant
AND
A. N. Wankwagu, Esq.( Attorney-General, Ebonyi State) with I. I. Alobu, Esq. (Director of Public Prosecution Ministry of Justice, Abakaliki Ebonyi State) and F. N. Nteoma, Esq. (Chief State Counsel, Ministry of Justice, Ebonyi State)For Respondent
