LEKAN ORISAN v. PEOPLE OF LAGOS STATE
(2019)LCN/12547(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/457CA/2016
RATIO
CRIMINAL LAW: ATTEMPT TO COMMIT AN OFFENCE
“I shall now refer to some few judicial decisions of the Supreme Court, out of many, where attempt to commit an offence has been defined. In the case of Ozigbo v. C.O.P. (1976) All NWLR P.109, Alexander, C.J.N. (of blessed memory) defined attempt to commit an offence in the following words: To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence. In the case of Jegede v. State (2001) 14 NWLR (pt.733) P. 263, Belgore, J.S.C. (as he then was) said:
‘If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction, is said to commit the attempt of the offence intended’.” PER TOBI EBIOWEI, J.C.A.
CRIMINAL LAW: LAST OVERT ACT
“The last overt act done by the accused usually supplies the necessary link as to whether an attempt has been made or executed to commit the offence for which the attempt is made. See Jegede vs. State (2001) 14 NWLR (pt.733) P.264: Nwankwo vs. F.R.N. (2003) 4 NWLR (pt.809) P.1: Ahmed v. The Nigerian Army (2010) LPELR-8969 (CA) per Peter-Odili, JCA (as he then was): Osetola & Anr v. the State (2012) LPELR-9348 (SC) per Rhodes-Vivuor, JSC: Ameh v. The State (1978) 6-7 S.C (Reprint) P.21 and Amadi v. F.R.N (2008) 12 S.C. (Pt. III) p.55. Thus, in the case of Sanusi vs. The State (1993) 4 NWLR (pt. 285) P.99 at 199, it was held that:
It is the law that in every crime, there is an intention to commit it, secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test of determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence, it would amount to an attempt to commit the offence.” PER TOBI EBIOWEI, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
LEKAN ORISAN Appellant(s)
AND
PEOPLE OF LAGOS STATE Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
The Appellant was the 1st Defendant in the criminal charge in the lower Court being the Criminal Division of the Lagos State High Court. He was charged along with Kabiru Abioki Bada who was the 2nd Defendant for the attempted murder of one Shina Ibrahim, who was PW3 in the lower Court. The offence is contrary to Section 320 (1) of the Criminal Code Law of Lagos State Cap 17 Volume 1, Laws of Lagos State, 2003. The prosecution called 9 witnesses in proof of its case. The lower Court presided over by Honorable Justice D.O. Oluwayemi found both Defendants guilty as charged and sentenced them to 10 years imprisonment each. This is the summary of the judgment of the lower Court as shown in pages 449-484 of the records. The 1st Defendant in the lower Court, who is the Appellant, dissatisfied with the judgment filed a notice appeal on 4/6/14 contained in pages 485-491 of the record of appeal. The said notice of appeal upon which this appeal is predicated has 8 grounds of appeal. Consequent upon the appeal, the 1st Defendant now becomes the Appellant. In this appeal, he is represented by Jitobo J. Akanike Esq., who settled the Appellant?s brief of argument. The Respondent’s brief of argument was settled by Y.G. Oshoala Esq, Director of Public Prosecution, Lagos State.
The Counsel to all the parties filed their respective briefs and when the appeal came up for hearing on 8/11/18, counsel adopted their respective briefs of argument. Learned counsel for the Appellant in his brief of argument raised 8 issues for determination while the Respondents counsel raised a single issue for determination. The Appellant’s issues for determination in the Appellant?s brief distilled from the grounds of appeal are;
1. Whether or not from the totality of the evidence led in this case it can be justifiably concluded that the prosecution has proved its case beyond reasonable doubt warranting the Lower Court to convict and sentence the 1st Appellant.
2. Whether or not the Lower Court has not by the rejection of Police re-investigation report tendered in evidence through PW7 (the investigating Police Officer) prejudiced the presumption of innocence of the 1st Appellant enshrined under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999.
3. Whether or not from the circumstances of the facts and evidence led in this case, the lower Court has not failed to properly and correctly record the totality of the facts contained in the evidence adduced in this case.
4. Whether or not from the evidence led in this case, the ingredients of the offence charged have been established by the Respondent and/or the 1st Appellant has in any way been linked to the commission of those ingredients of the offence charged.
5. Whether or not from the circumstances of the facts and evidence led in this case, the 1st Appellant has not properly raised the defence of alibi to warrant the consideration of the same in the defence of the 1st Appellant by the lower Court.
6. Whether or not the Respondent is allowed and/or can competently address the lower Court in response to the 1st Appellant’s plea of allocutus.
7. Whether or not the sentence of 10 years imposed on the 1st Appellant by the lower Court is not harsh and excessive giving the facts and circumstances of this case.
8. Whether or not from the totality of the facts contained in the evidence led in this case, the judgment of the lower Court dated 28/5/2014 can in anyway be sustained.
Addressing issue 1, learned counsel to the Appellant after stating the legal position of the law on the burden and the standard of prove required in criminal matters submitted that the prosecution failed to satisfy the burden and standard of proof required to secure the conviction of the Appellant. He referred to Section 135 of the Evidence Act 2011 and the cases of Stephen vs. State (2009) 44 WRN 168 @ 179; Ogboru vs. Ibori (2007) WRN 52 @ 107; Oche vs. State (2006) WRN 42 @ 76-77; Uwagboe vs. State (2006) WRN 51 @144; Yaki vs. State (2009) 1 WRN 1 @ 28; Buhari vs. Obasanjo (2005) 19 WRN 1. While conceding that all contradictions in the evidence of the prosecution would not necessarily and negatively affect the case of the prosecution, it is his firm submission that after taking an excursion into the evidence of the 9 prosecution witnesses, their evidence is full of contradictions, inconsistencies, falsehood and unreliable as such the case of the prosecution has fundamental flaws. He urged this Court to resolve this issue in favour of the Appellant.
The 2nd issue is the rejection of the re-investigation report of PW7 by the lower Court. This amount to denial of fair hearing based on the principle of innocence entrenched in Section 36 (5) of the 1999 Constitution of Federal Republic of Nigeria, counsel submitted.
The learned Counsel in addressing issue 4 adopted the argument he raised while addressing issue 1. The prosecution in its evidence through their witnesses has not been able to link the Appellant to the crime as there is so much contradictions, discrepancy and inconsistencies in their evidence. This is his submission on issue 4. Counsel did not advance any argument on issue 3, in law it is deemed abandoned.
The Appellant in the lower Court raised the defence of alibi. The fifth issue raised by the Appellant is whether the defence of alibi will not avail the Appellant. The Appellant raised the defence of Alibi during the investigation by PW7 and therefore the lower Court decision that it was not raised on time was in error, counsel submitted. The inability of the prosecution to tender the Appellant?s statement made to PW7 and PW9 is fatal to the prosecution case, counsel further submitted relying on Lasisi vs. State (2011) 52 WRN 118 @ 163-164; Annabi vs. State (2008) 4-5 SC (Pt. II) 229; Nwaturuocha vs. State (2011) 2-3SC (Pt. 1) 136 and Almu vs. State (2009) 4-5 SC (Pt. II) 51-52.
The learned Counsel submitted on the sixth issue that the lower Court was wrong to have gotten the Respondent to reply to the plea of allocutus by the Appellant. This occasioned miscarriage of justice as this brought bias in the mind of the Court. The final issue which counsel addressed is the seventh issue which is that the sentence of 10 years is excessive. Learned Counsel for the Appellant finally submitted that the appeal should be allowed and the conviction of the Appellant quashed.
The Respondent earlier in this appeal had on 13/2/18 filed a notice of preliminary objection. The argument on the notice was taking as part of the address of the Respondent. The ground upon which the notice of preliminary objection is based is that the notice of appeal is incompetent since one notice of appeal was filed for the two Defendants. This notice of preliminary objection has been overtaking by events as subsequently; different notice of appeal was filed for each of the Defendants in the lower Court. The record of appeal has a separate notice of appeal for each of the Defendant. The Appellant in this appeal was the 1st Defendant in the lower Court in charge No: LCD/83/2010. His notice of appeal is in pages 485-491 of the records. The 2nd Defendant is Kabiru Aboki Bada whose notice of appeal is in pages 492-498 of the record. All this, it will appear made the Appellant not to file a reply to the preliminary objection. That ends the issue of the preliminary objection. Very convenient to end that here.
I will now look at the Respondent’s brief. The Learned Director of Public Prosecution who settled the brief raised a single issue for determination. It is; whether the trial judge considered the totality of the evidence before the Court and rightly convicted the Appellant of the attempted murder of Shina Ibraheem.
Learned counsel of the Respondent in the brief agreed with the general position of the law on the burden and the standard of proof placed on the shoulder of the prosecution. Counsel however submitted that the prosecution has discharged the obligation placed on it by law.
He cited Omorhirhi vs. Enatevwere (1988) 1 NWLR (Pt. 73) 746; Adio vs. State (1986) 2 NWLR (Pt. 24) 581; Alonge vs. IGP (1959) 4 FSC 203; Fatoyinbo vs. A.G. Western Nigeria (1966) WNLR 4; State vs. Danjuma (1997) 5 SCNJ 126. It is counsel?s submission that there is sufficient direct and circumstantial evidence that link the Appellant to the offence of attempted murder of Shina Ibrahim.
The learned counsel in addressing the single issue raised by him also advanced argument as reply on other issues addressed by the Appellant. On the defence of Alibi raised by the Appellant, counsel submitted that it did not meet the legal requirement to avail him as he did not give the particulars of the alibi and it was not raised timeously. He referred to Samuel Attah vs. State (2010) 10 NWLR (Pt. 1201) 190. It is his final submission that the lower Court was right in accepting and acting on the evidence of the prosecution witnesses to convict the Appellant. He cited Akpan vs. State (2002) FWLR (Pt. 110) 1848: Sule vs. State (2007) LPELR-8901(CA); Adegboyega Ibikunle vs. State (2007) 19 NWLR (Pt. 59)546 and Salawu vs. The State (2011) LPELR- 9351 (SC). Learned Counsel finally urged Court to dismiss the appeal and uphold the decision of the lower Court.
The law allows a Court to formulate issues for determination in a case on appeal but it will be safer for me to adopt the issues for determination distilled from the grounds of appeal as shown in the Appellant?s brief. The single issue raised by the Respondent can be subsumed in the first issue raised by the Appellant. I will now address the issues one after the other. Naturally, I will start with issue 1. I will also address issue 3. I will therefore be addressing issues 1 and 3 together. Both counsel have properly stated the position of the law as it relates to the burden and standard of prove in criminal matters. The law is settled on this point. It is that, the duty is solely on the shoulder of the prosecution to prove beyond reasonable doubt the guilt of the Defendant in a criminal matter. This burden does not shift. The implication of this is that, the Respondent in this appeal has the duty to prove that the Appellant committed the offence. The Respondent by credible evidence must connect the Appellant to the offence. In Adepoju vs. State (2018) LPELR-44355 (SC), the Supreme Court per Peter-Odili, JSC at pages 27-29 held:
‘The two contending positions on either side of the divide have to be viewed within the con of what the law provided. That is to say that in proving the guilt of the accused the onus of proof lies on the party alleging the crime beyond reasonable doubt. See Section 135 of the Evidence Act, 2011 and with particular reference to Subsection (3) which stipulates thus:-
(3). If the prosecution proves the commission of crime beyond reasonable doubts, the burden of proving reasonable doubts is shifted on to the defendant.
The Courts have interpreted that provision in a number of judicial authorities which I shall have to call in aid. For example, my learned brother, Rhodes-Vivour, JSC had stated the position to be thus in the case of the State v. John (2013) 12 NWLR (Pt. 1368) 337 at 360 as follows:-
‘Once all the ingredients of an offence have been proved by the prosecution to the satisfaction of the Court, the charge is said to have been proved beyond reasonable doubt and the guilt of the accused person is pronounced by the learned Trial Judge.
Indeed Section 138(1) of the Evidence Act requires crimes to be proved beyond reasonable doubt. In Miller vs. Minister of Pensions (1947) 2 ALL ER P. 372 at 373, Para. H, Lord Denning Mr., said that:
Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as leaves only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
It has been reiterated again and again that the said requirement is not tantamount to the prosecution being expected to prove any criminal offence as absolute proof beyond reasonable doubt or proof beyond all shadow of doubt rather what is required is proof beyond reasonable doubt. See, Banjo v. The State (2013) 16 NWLR (Pt. 1381) 455 at 468: Akalezi vs. State (1993) 2 NWLR (Pt. 273) 1: Oreoluwa Onakoya vs. F.R.N. (2002) 11 NWLR (Pt. 779) 595.
Similarly in Godwin Igabele II vs. State NSCQR Vol. 25 (2006) 321, the Supreme Court per Onnoghen, JSC (as he then was) held-
‘I agree that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking therefore, there is no duty on the accused to prove his innocence.’
The prosecution in a criminal case can establish its case by direct evidence, circumstantial evidence or confessional statement. Whichever way, the prosecution uses, the burden and standard of prove does not change. InHenry Egbuji vs. State ELC(2014) 1187, it was held:
‘It is now settled beyond citing of legal authorities that the burden of proof in criminal cases is strictly on the prosecution and it does not shift from beginning to the end of the trial, see the case of Yongo & Anor vs. C.O. P. (1992) 4 SCNJ 113 where the Supreme Court held as follows:
‘In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredient of the charge are proved by evidence.’
The standard of proof is beyond reasonable doubt and this has been established to mean that once the proof drowns the presumption of innocence of the accused, the Court is entitled to convict, although there could exist some doubt but the moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or the actus rea then the prosecution has proved its case or discharged the burden placed on it by the Evidence Act.
The Respondent in the lower Court must prove beyond reasonable doubt the ingredient of the offence with which the Appellant is charged. The offence is attempted murder. The ingredients of the offence are:-
1. The Appellant had intention to kill.
2. There must be a physical act by the Defendant to commit the complete offence and
3. The intervention of an act that prevented the commission of the crime.
The Court of Appeal endorsed the above definition in Essien vs. State (2016) LPELR-41179. The Court held:
‘For the prosecution to succeed in a charge of attempted murder, it must prove beyond reasonable doubt that the steps taken by the accused person must have reached the point where they indicate beyond reasonable doubt what the end to which they were directed. Thus, the accused person must have gone beyond mere preparation for the offence charged. See Rusell on Crime, 10th Edition, page 1790. The above is generally referred to as the proximity test.
Among the key ingredients of attempted murder are:
1. The intention of the Appellant to kill;
2. The execution of such intention by some overt act;
3. An intervening act from fulfilling such intention. (Section 4(1) of the Criminal Code Supra) .
The prosecution must prove that the act of the Appellant has gone beyond preparatory stage and ready for full manifestation of his intention to kill. Such act must have one conclusion which is the completion of the offence. In Ezeuko vs. State ELC ELC(2016) 2162 SC 1, the apex Court held:
‘Attempt to commit a crime is an inchoate offence, the elements of which are the physical acts of the accused sufficiently proximate to the complete offence with an intent on the part of the accused to commit the complete offence. It is something more than mere preparation to commit the offence.’
The evidence before the Court therefore must be beyond mere preparation but must amount to actual execution of the intention to kill. In Akinosi vs. State (2017) LPELR-42384 (CA), this Court per Tsammana, JCA at pages 19-24 held:
‘Now, the offence of attempt to commit murder has been created by Section 320 (1) of the Criminal Code Law, of Ogun State, 2006 which stipulates as follows:
320. Any person who-
(1) attempts unlawfully to kill another; or
(2) … is guilty of a felony, and is liable to imprisonment for life.
The Criminal Code Law of Ogun State (supra) does not define what attempt to commit murder is. However, Section 4 of the Criminal Code Law (supra) has defined what an attempt to commit an offence is in general terms. That Section defines attempt to commit offences as follows:
4. When a person, intending to commit an offence, begins to put his intention into execution by means adopted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such extent as to commit the offence, he is said to attempt to commit the offence. The said Section (Section 4) of the Law proceeds to stipulate that:
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. The same facts may constitute one offence and an attempt to commit another offence.
His Lordship continues in these words:
Another definition of attempt to commit an offence is that provided by Bryan A Garner in Blacks Law Dictionary (9th Edition) at page 146 where it is stated that:
1. The act or an instance of making an effort to accomplish something, especially without success.
2. An overt act that is done with the intent to commit a crime but that falls short of completing the crime.
Attempt is an inchoate offence distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step towards commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed. It would be seen therefore, that attempts to commit an offence, generally consists of the acts or steps taken by the accused in furtherance of an indictable offence or a felony.
I shall now refer to some few judicial decisions of the Supreme Court, out of many, where attempt to commit an offence has been defined. In the case of Ozigbo v. C.O.P. (1976) All NWLR P.109, Alexander, C.J.N. (of blessed memory) defined attempt to commit an offence in the following words:
To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence. In the case of Jegede v. State (2001) 14 NWLR (pt.733) P. 263, Belgore, J.S.C. (as he then was) said:
‘If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction, is said to commit the attempt of the offence intended’.
Similarly, His lordship continued in his excursion into the law on attempt thus:
In the case of Shurumo vs. The State (2010) 19 NWLR (Pt.1226) P.73, Fabiyi, JSC said: To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. The mere intention to commit a misdemeanor is not enough. Some act is required. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it. But acts immediately connected to it are of moment. The offender must have crossed the Rubicon and burnt his boat. See: R. v. Eagleton Dears 515, 548, 169 E.R 835 per Parke B. See: also Orija v. I.G.P. (1957) NRNLR 189. It literally means that the acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped.
An attempt to commit an offence is therefore, one which falls short of the commission of the actual offence, but is nonetheless a crime once it is established that the accused person had the guilty mind. Such guilty status of the accused’s mind must be manifest in an overt act done by the accused person towards the commission of the offence. To constitute an attempt to commit an offence, the act of the accused must be immediately connected with the commission of the particular offence charged. In other words, the overt act must however, be something more than a mere preparation for the commission of the offence.
The last overt act done by the accused usually supplies the necessary link as to whether an attempt has been made or executed to commit the offence for which the attempt is made. See Jegede vs. State (2001) 14 NWLR (pt.733) P.264: Nwankwo vs. F.R.N. (2003) 4 NWLR (pt.809) P.1: Ahmed v. The Nigerian Army (2010) LPELR-8969 (CA) per Peter-Odili, JCA (as he then was): Osetola & Anr v. the State (2012) LPELR-9348 (SC) per Rhodes-Vivuor, JSC: Ameh v. The State (1978) 6-7 S.C (Reprint) P.21 and Amadi v. F.R.N (2008) 12 S.C. (Pt. III) p.55. Thus, in the case of Sanusi vs. The State (1993) 4 NWLR (pt. 285) P.99 at 199, it was held that:
It is the law that in every crime, there is an intention to commit it, secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test of determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence, it would amount to an attempt to commit the offence.
The Supreme Court decision in Jegede vs. State (2001) 7 SC (Pt. 1) 122 is also instructive. The apex Court held:
‘In Ozigbo vs. Commissioner of Police (1976) 1 All NLR 133 at 141, this Court, per Alexander, CJN, declared- “To constitute an attempt the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence?. See also, Orija vs. Inspector General of Police (1957) NRNLR 189, where, as in Ozigbo R. vs. Eagleton, (1854-1855) Dears, 515, 538, 169 ER 826, 835 was followed. In Eagleton, Parke, B declared as long ago as (1855) the law on attempt to be this: “The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ….” This dictum has been regarded as the correct law on the subject and has been followed ever since by the Courts both in England and in this country. In Hope v. Brown (1954) 1 WLR 250, Lord Goddard, L.C.J. acknowledged R. v. Eagleton as the locus classicus of what amounts to an attempt. Smith, I. delivering the judgment of the High Court of Northern Nigeria in Orija v. Inspector-General of Police (supra) observed at pages 192-193: “But it is not necessarily the last act in every case which proves the attempt. All that is required is an act immediately connected with the particular offence which clearly shows that the offender was attempting to commit it.
That is what Section 4 of the Criminal Code requires, i.e., an overt act which clearly manifests the intention but which does not amount to its fulfillment. It may be the last of a series of overt acts because up to that point it is not clear whether the offender is attempting to commit the particular offence charged or some other offence. It may be the first act because that act was unequivocally an attempt to commit the particular offence and no other. The test in EAGLETON is applicable to Section 4 of the Criminal Code because it is necessary to ascertain the acts immediately connected with the crime in order to decide which overt act or acts clearly manifest the intention to commit that crime. But a more practical test is that suggested by the learned author of Russell on Crime (10th Ed. P. 170): ‘the prosecution must prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt what was the end to which they were directed.” I agree entirely with the above dictum of Smith J.
Though the weapon used does not constitute part of the ingredients of the offence of attempted murder but it is not out of place to deduce from the weapon used and the part of the body inflicted with the weapon. It is not sufficient to prove attempted murder by mere evidence that the person was seen with a gun or knife as that alone will amount to preparatory act at best. It is when that intention is put into action that threatens the life of another in such a way that if not for the intervening action of another, the victim would have died that the offence of attempted murder will be said to be complete. The Appellant must be linked to the offence. See Prince Lukman Ajose vs. FRN NCC Vol. 8 2013 page 555 and Ikomi & Ors vs. State (1986) 5 SC 313. This is time to look at the evidence of the prosecution witnesses to see whether the lower Court was right in convicting the Appellant for the offence as charged. The lower Court at page 483 of the records held:
‘In view of the evidence of the prosecution witnesses together with Exhibits tendered and the alibi of the Defendant not presented at the earliest opportunity except during that evidence in chief. I hereby hold that the two Defendants are guilty of attempted murder of Mr Shina Ibrahim under Section 320 (1) of the Criminal Code Law Cap 17 Vol 2 Laws of Lagos State 2003 and are hereby convicted as charged.’
In doing so, I am cautious of the principle that an appellate Court will generally not interfere with the finding of facts by the lower Court except if such finding does not conform with the evidence before the Court or in legal terms if such finding is perverse. See: Miss Felicia Osagiede vs. Dr. Gharoro & Ors NSCQR vol. 25 (2006) 712.
Looking at the evidence of the prosecution witnesses it would appear that the most relevant is the evidence of PW3 which is the direct evidence as the victim of the offence. PW5 and PW6 also testified to the effect that the Appellant shot the PW3. The evidence of PW1, PW2, PW4, PW7, PW8 and PW9 did not in my opinion meet the required prove beyond reasonable doubt as all they confirmed was that they saw the Appellant with gun or that the victim was shot. None of them could say that they saw Appellant shoot or injure Pw3. The circumstance upon which the witnesses mentioned above drew the conclusion that the Appellant shot the PW3 is not cogent or conclusive or better put lead to one conclusion alone, which is that the Appellant shot the PW3. Their evidence is based on circumstances. For circumstantial evidence to secure conviction, such evidence must be strong, unequivocal, cogent and compelling leading to an irresistible conclusion that the Defendant committed the offence. See Adepetu vs. State (1998) 7 SC (Pt. 1) 117 and Ajaegbo vs. State (2018) LPELR-44531 (SC).
The direct evidence as it appears is that of PW3, PW5 and PW6. PW3 is the victim of the alleged shooting. In his evidence in page 379 of the record, he said he was carried out of the room and was shot by the Appellant with a gun on his buttocks. PW5 is Segun Salako who works with PW3. His evidence in page 384 of the record is to the effect that the Appellant shot the PW3 beside his thigh in the room. As at when the Appellant was shot as claimed by the PW5, he was outside and shot by 2nd Defendant. To this extent his account of what happened as it relates to the shooting of Shina Ibrahim by Appellant is suspect and most unreliable. The PW3 said he was shot in the buttocks while PW5 says the PW3 was shot in the thigh. This is a contradiction which makes the evidence of the PW5 unsafe to use in convicting the Appellant. PW6 like PW5 works with PW3. At page 387 of the records, PW6 testified that they were in the room when the boys entered including the Appellant and the other Defendant. He said the Appellant shot PW3 and this was in the room. This is again different from the evidence of PW3. There are material contradictions in the evidence of the direct witnesses. Such material contradictions are fatal or affect the case of the prosecution. For the contradiction to be fatal it must touch the material part of the prosecution case. It is a contradiction in the evidence that will touch an ingredient of the offence. In Dibie vs. State (2007) 3 SC (Pt. 1) 176, the apex Court held:
‘A material contradiction must go to a material point in the prosecution’s case, as to create doubt in the case that the appellant is entitled to benefit from. See the case of Ahmed v. The State (2001) FWLR (Pt. 90) 1358 at 1385; (2001) 18 NWLR (Pt. 746) 622.’
Similarly, in Ikemson & Ors vs. State (1989) 1 SC (Pt. 2) 33, the apex Court held:
‘When the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what is says – contra-dictum-to say the opposite. Contradiction should be on a material issue to amount to material contradiction. Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. Whether the P.W.2 was shot on the leg or thigh is again not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & Anor. vs. The State (1974) 9 S.C.1 at P.20 arises only when there are material contradictions.’
While for the purpose of armed robbery the part of the body of the victim shot is not relevant, for attempted murder in my opinion it is relevant as that will to a great extent show his intention whether to kill or to threaten. To that extent therefore, when there is contradictory evidence as to what part of Shina Ibrahim?s body was shot and whether he was shot outside or in the room, in my opinion becomes material and relevant to determine whether Appellant is liable for attempted murder. The Statement of PW3 which is admitted as Exhibit B did not mention who shot him. He only said they shot him. He also said he knew the Appellant before the incident. It is strange that he did not mention his name at the earliest opportunity. This creates doubt as to whether it was the Appellant that shot PW3.
It is not in dispute that PW3 was shot but the real issue is, was it the Appellant who shot him – There is doubt in the light of the contradictory evidence as to whether it was the Appellant that shot PW3. The law on doubt created by the evidence of the prosecution is clear. If there is any doubt in a criminal case revealed by evidence of the prosecution, that doubt will be resolved in favour of the accused, in this instance the Defendant/Appellant. See Odogwu vs. State NSCQR Vol. 55 2013 page 309 and Chukwuka Ogudo vs. State NSCQR Vol. 48 page 2011.
Once the case of the prosecution has material doubts, it cannot be said that the prosecution has proved its case beyond reasonable doubt. All the Respondent proved in the lower Court to my mind is that the Appellant along with others came to the house of the PW1 at Oke-Oko, Isawo, Ikorodu armed with guns and in the process PW3 was shot. The main question is who shot him. The Respondent evidence in this regard pinning the Appellant as the person who shot PW3 is full of contradictions which invariably create doubt in the mind of the Court as to who shot PW3.
I do not feel save to draw the same conclusion reached by the lower Court at page 483 of the record that the Respondent has proved beyond reasonable doubt that the Appellant shot the said Shina Ibrahim. While coming to that conclusion, I am cautious of the fact that the standard of proof required is not beyond all shadow of doubt but beyond reasonable doubt. See Oseni vs. State NSCQR Vol. 49 2012 page 1190; Usufu vs. State (2007) 3 NWLR (pt 1020) 94. In Ankpegher vs. State (2018) LPELR-43906 (SC), the Supreme Court per Okoro JSC at pages 10-12 held:
‘In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.
See also Nwaturuocha vs. The State (2011) 6 NWLR (Pt.1242) 170, Smart vs. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni vs. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan vs. The State (2016) LPELR-42554 (SC). In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.
In my firm view, the Respondent has not proved beyond reasonable doubt that the Appellant shot Shina Ibrahim. I resolve this issue in favour of the Appellant. This seems to put an end to this appeal in favour of the Appellant but as required by law, a Court must address all the issues raised by parties or counsel on behalf of parties. It is in obedience to that legal principle that I will go further to address the other issues for determination raised by the Appellant in his brief of argument. The second issue is on the rejection of the re-investigation report by the lower Court and whether that amounted to denial of fair hearing. It is paramount that parties in a case are all given equal opportunity to present their case. This is fundamental. Everyone has rights that should be protected.
Indeed, I make bold to say, a Defendant in a criminal charge and in fact a convicted person has rights. Those rights should be protected and defended by a Court in the interest of not the person alone but for the wider society. It will however be taking it too far to opine that a Court’s discretion to admit or reject a document amounts to denial of fair hearing. This will only amount to denial of fair hearing if the Court did not give the other party opportunity to address it on the document.
The Counsel to the Appellant argued that the Court did not allow him tender through the PW7 the re-investigation report. He referred to the proceedings of that day as in page 400 of the records. This was the proceedings of 11/4/2011. I have gone through the proceedings of that day at pages 399-401 which has part of the evidence of PW7. I cannot seem to see anywhere that the pre-investigation report was sought to be tendered and rejected by the lower Court. The record of proceeding is not clear on that point. That notwithstanding I cannot resolve that issue in favour of the Appellant as the use of discretion in admitting or rejecting a document cannot amount to denial of fair hearing or the violation of the presumption of innocence as guaranteed by the constitution.
The Appellant in his defence contained in pages 407-413 raised the defence of alibi. This was corroborated by his wife in her evidence contained in pages 428-430 of the record. In his evidence at page 407, the Appellant said on 6/7/11, the day the offence is alleged to have been committed he was in his house at No. 8 Aina Olowu Street, Igbogbo which is quiet a distance of about 30 kilometres from Isawo, the scene of the crime . He was home till 10am when he left for Isawo. He was there till 6.30pm and arrived home around 7.30pm. He was home throughout that night. He woke up around 6.30am on the 7/7/11. He said he was home with his wife Lady Evangelist Victoria Olapeju Orisan. This evidence if believed clearly establishes his defence of alibi. This is because the Appellant been a human being and not a spirit being cannot be in two different places at the same time. There is nowhere in the whole proceedings where this evidence was challenged and discredited by the Respondent. The defence of Alibi is all about the Appellant saying he was somewhere else apart from the scene of crime. It simply means that the defence is announcing that the Defendant was not at the scene of the crime but rather was somewhere else.
To succeed in this defence, the Appellant must raise it at the earliest possible opportunity and must give reasonable particulars of where he was at the time and the person with whom he was to enable the police investigate it. The implication of this, is that, if the Appellant did not raise it at the time of investigation but during evidence in Court, the defence will not avail him. This is a trite principle of law as it relates to the defence of Alibi. A few case law excursions will be instructive. In Nnami Osuagwu vs. State NSCQR Vol. 53 2013 page 562, the Supreme Court per Rhodes-Vivour, JSC held as follows:
‘Alibi means “elsewhere”. When an accused contends that he cannot be guilty of the offence charged because at the time of commission of the offence he was somewhere else raises the defence of alibi or an alibi defence. After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence.
In Court an accused person who sets up the defence of Alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the Court but for the prosecution to disprove it. A plea of Alibi is demolished if the prosecution adduces sufficient and accepted evidence to fix the person at the scene of the crime at the material time.
It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.
Similarly in Ogogovie vs. State (2016) LPELR-40501 (SC) per Sanusi, JSC at pages 58-59, the apex Court held:
‘The word “Alibi” simply means elsewhere. It is the duty of the accused who intends to rely on it as a defence, to furnish the police with sufficient particulars of same. He must state his whereabouts and those persons with him at the material time. It is then, that it is left for the prosecution to disprove same as failure to investigate the Alibi may lead to the acquittal of the accused. See Yanor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. State (1973) 1 NLR 331; and Odu & Anor v. The State (2001) 5 SCNJ 115 at 120 or (2001) 10 NWLR (Pt. 772) 668.
In Patrick Njovens & Ors vs. The State, Coker, JSC (of blessed memory) stated as follows on page 401.
“… There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished. ”
The real issue here is whether the Defendant has discharged his own part of the obligation to enable him enjoy the benefit of the plea of alibi which most times is an acquittal. The Appellant in his evidence gave his address as No 8, Aina Olowu Street, Igbogbo which is a different location from the scene of the crime in a Oke-Oko street, Isawo, Ikorodu. He also said he was at home with his wife whose name he gave as Lady Evangelist Victoria Olapeju. He has given sufficient particulars to enable the police investigated his alibi. This the police did not do, as there is no evidence that the police investigated the alibi of the Appellant which was corroborated by his wife. If the defence was raised for the first time during the trial then it will be considered an afterthought as the defence is required to be made timeously. The best time to raise it, is when the Appellant is making his statement to the police.
There is evidence that the Appellant made a statement to the police. This statement was not tendered by the Respondent through PW7 and PW9 who are police officers who investigated the case. The implication in law in line with Section 167 (d) of the Evidence Act 2011 is that the Respondent did not tender the statement because it will be against the case of the Respondent in the lower Court. There is a presumption in favour of the Appellant as it will be seen as the Respondent withholding evidence. See,Ewugba vs. State (2017) LPELR-43833 (SC).
The learned DPP directed this Court to pages 20-23 of the records which contain the statement of the Appellant to the police. This is part of the proof of evidence. The learned DPP is hoping that since the document was part of the proof of evidence, the lower Court can refer to it. That statement having not been tendered in Court cannot be considered as a document which is before it. See, Godwin Igabele II vs. State NSCQR Vol. 25 (2006) 321. A proof of evidence is not evidence. It is a proof of the evidence that the prosecution intends to call. The prosecution which decide against presenting evidence in its proof in Court should ready to bear the consequences of such action. The decision is that of the prosecution. The proof only becomes evidence once it is presented to Court. Since the Appellant statement is not tendered, I cannot look at it or consider it. The lower Court in page 482 of the record came to this finding which I am in agreement with in these words:
‘However, the statement made at Owutu Police Station by the 1st Defendant was not tendered in Court in finding out at what stage the alibi was raised, that notwithstanding the Court is not unmindful of the fact that the 1st Defendant reported this case at Owutu Police Station and men of RRS were detailed to follow him to the scene of the crime. Be that as it may, the onus of establishing the guilt of the accused person in the face of any alibi rest permanently on the prosecution and when same is raised it must be investigated. From the records of Court PW7 and PW9 did not at any time investigate the defence of alibi rather PW7 said he could not verify the alibi of DW1 because of the OPC problem in Ikorodu but that he went to the house of DW2 at Mount Carmel Street, Owutu but the gate was locked and there was nobody to attend to him.’
In the light of the above finding I am at a loss as to how the lower Court came to the conclusion of finding the Appellant guilty. That finding above and the eventual decision are not singing the same song. They are inconsistent to each other. The decision in my opinion is inconsistent with the finding of fact by the lower Court.
While I agree that it is not in all cases that failure to investigate alibi will lead to acquittal but this is one of such cases that the failure to do so will lead to acquittal as the evidence of the prosecution in my view could not beyond doubt place the Appellant in the scene of the crime. The inability of the Respondent to tender the statement of the Appellant he made to them to enable the Court determine whether he raised the defence at the earliest opportunity and the evidence of PW7 and PW9 to the effect that they were told when they were investigating that the Appellant was at home and subsequently, their inability to investigate the alibi create a great doubt in the mind of this Court indeed it should to any Court as to the guilt of the Appellant. This doubt as required by law. I resolve in favour of the Appellant. The implication of this is that the defence of alibi exonerate the Appellant. The defence is a complete defence. Even if i was wrong in holding that the Respondent did not prove beyond reasonable doubt the ingredients of the offence the Appellant is charged with, my finding on the defence of alibi will amount to an acquittal of the Appellant. A successful defence of alibi will amount to acquittal. See: Ogogovie vs. State (2016) LPELR 4050 (SC);
Issues 6 and 7 are not too relevant so I will briefly just mention here as it relates to issue 6 that, I do not think there is any miscarriage of justice by the permission the lower Court granted the Respondent to comment on the allocutus plea of the Appellant. Similarly, the sentence of 10 years is obviously not in excess if I had held the Appellant liable. This is in relation to issue 7.
It is not enough to show that Shina Ibrahim was shot but the Respondent was unable to connect the Appellant to the offence beyond reasonable doubt.
The decisions of Courts are not based on sentiment or speculation. It is the law that, suspicion no matter how great will not amount to cogent evidence. See: Idowu vs. State (1998) 9-10 SC; Alor vs. State (1997) 4 NWLR (Pt. 501) 511; Igbikis vs. State (2017) LPELR 41667 (SC). In the circumstance of this case, Section 7 of the Criminal Code Law of Lagos State will not apply.
The decision of this Court is obvious. This appeal has merit and it is allowed. The judgment of the Lower Court, that is, the criminal Division of the Lagos State High Court presided over by Hon. Justice Oluwayemi is hereby set aside.
In place of the verdict of guilty as pronounced by his Lordship, I find the Appellant not guilty. I hereby discharge and acquit the Appellant for the offence of attempted murder of Shina Ibrahim.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother EBIOWEI TOBI, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein. I adopt the Judgment as mine with nothing further to add.
Appearances:
O. Ayeteni, Esq.For Appellant(s)
Y. G. Oshoala, Esq., (Director) with him, Y. A. Sule, Esq., (Principal State Counsel)For Respondent(s)
