MR. IZIBEFIEN TAMUNO v. THE STATE
(2018)LCN/12118(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/PH/27CR/2017
RATIO
DEFENCE: WHETHER THE DEFENCE OF ALIBI WILL AVAIL
“The law is trite that if the prosecution adduces sufficient evidence to fix the accused at the scene of crime at the material time, then his alibi is logically and inevitably demolished and that would be enough to render such plea ineffective as a defence. See:- (1) NJOVENS & ORS V THE STATE (1973) 1 NMLR 331. (2) BELLO V POLICE (1959) WRNLR 124. (3) R V TURNER (1957) 2 RNLR 34. (4) GACHI & ORS V THE STATE (1965) NWLR 333. (5) YANOR V THE STATE (2010) NMLR 337 In GABRIEL OGOGOVIE V THE STATE (2016) LPELR (SC) the Supreme Court held at page 59 per SANUSI JSC: -‘I must reiterate here, that although the failure on the part of the prosecution to check or investigate an alibi raised by an accused person may cast doubt on the reliability of the case of the prosecution and may even lead to the acquittal of an accused, however, in a situation where there is evidence, direct or circumstantial, fixing the accused at the scene of the crime, then the prosecutions failure to check the alibi will not be fatal.'” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
MR. IZIBEFIEN TAMUNO Appellant(s)
AND
THE STATE Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):
This is an appeal from the judgment of the High Court of Bayelsa State, Yenagoa Judicial Division, NAYAI AGANABA J., presiding delivered on 23rd February, 2017. The Appellant was the 1st accused while one IZIBEKUME GEORGE was the 2nd accused person. The accused persons were charged with and convicted of offence of murder contrary to Section 247(1) of the Criminal Code Law, Cap. C14, Laws of Bayelsa State, 2006. The particulars of offence reads thus: –
“That you IZIBEFIEN TAMUNO, IZIBEKUMA GEORGE and others now at large on or about the 21st day of March, 2015 at about 1000 hrs at Okobede bush, Opolo, Yenagoa and in the Yenagoa Judicial Division of Bayelsa State murder Kolu Edi.” (page 2 of the records of appeal).
Trial commenced on 14th December, 2015 when the plea of the accused persons was taken and they pleaded ?Not Guilty.” (page 138 of the Records).
On 28th January, 2016 P.W.1, Mr. Mopenze Morning Ezekiel entered the witness box. Thereafter the prosecution called 8 other witnesses as follows:
P.W.2:- Chief Lagumo Etim (pages 142 – 145 of the Records).
P.W.3:- Julius Eka Friday. (pages 145 – 148 of the Records).
P.W.4:- Mirin Johnson. (pages 148 – 153 of the Records).
P.W.5:- Ishie Goodluck. (pages 153 – 155 of the Records).
P.W.6: – HRH Richard Ayabode Akintola. (pages 155 – 157 of the Records)
P.W.7:- D. S. P. Richard Jaja. (pages 158 – 159 of the Records).
P.W.8:- A. S. P. Newstyle Ogiori (pages 160 – 164 of the Records).
P.W.9:- Dr. Udoye Patrick. (pages 165 – 166 of the Records).
All the prosecution witnesses were duly cross-examined by learned counsel to the accused. The appellant called two witnesses and also testified. The two witnesses called by the appellant are: –
D.W.1:- Mrs. Gift Izibefien. The wife of the 1st accused/appellant (pages 167 – 169 of the Records).
D.W.5:- Freedom Egba the coworker and boss of the appellant (pages 169 – 170 of the Records).
On 12th July, 2016, the appellant entered the witness box and testified as D.W.3 on pages 174 – 178 of the record of appeal. Thereafter written addresses were ordered, filed and exchanged. The case was then adjourned to 21st November, 2016 for adoption of written addresses. Counsel adopted their written addresses and the learned trial Judge adjourned the case for judgment. On 23rd February, 2016 judgment was delivered. In his judgment on pages 191 – 223 of the record of appeal, learned trial Judge formulated two issues for determination as follows: –
1: Whether the prosecution has proved beyond all reasonable doubts that accused persons murdered or took part in the murder of the deceased.
2: Whether the accused person (sic) have been able to establish their alibis raised on the balance of probabilities. (page 198 of the Records).
In his resolution of the two issues learned trial Judge considered the second issue first. He stated his reason for doing so in page 202 of his judgment thus:-
“In determining the guilty or otherwise of the accused persons I will like to start with the second issue which is whether the accused person have been able to establish the alibi they raised on the balance of probability. This is so because where the alibi raised is proved, this Court can go no further than to discharge and acquit the accused persons no matter the compelling nature of the evidence of the prosecuting witnesses. In fact, the establishing of the alibi creates a reasonable doubt in the case of the prosecution which must determine the case in favour of the accused person (sic).”
The learned trial Judge resolved both issues against the accused persons when he held thus: –
“Without much ado, on the basis of my findings above, I find the 1st person (sic) Izibefien Tamuno and the 2nd Accused Person Izibekuma George GUILTY of the offence of Murder.” (page 223 of the record of appeal).
Thereafter the learned trial Judge pronounced sentence on the accused persons as follows:-
“Izibefien Tamuno, my sentence upon you is that you be hanged on the neck until you are dead. May God have mercy on your soul. Izibekuma George, my sentence upon you be hanged (sic) on the neck until you are dead. May God have mercy on your soul.”
The Appellant was aggrieved with this sentence, so he filed a Notice of Appeal on 15th May, 2017 containing 9 grounds of appeal. (Pages 224 – 233 of the records of appeal). However, pursuant to Order 17 Rule 3(3) of the Rules of this Court, 2016 the Appellant through his counsel, B. A. M. Fashanu SAN, obtained leave of this Court and filed an Amended Notice of Appeal containing 11 grounds of appeal. It was deemed as properly filed and served on 18th September, 2018. The records of appeal was compiled and transmitted to this Court on 19th July, 2017. The appellant’s Brief of Argument was settled by B. A. M. FASHANU, SAN. It was filed on 10th May, 2018 but deemed as properly filed and served on 18th September, 2018.
After stating the relevant facts, learned senior counsel formulated three issues for determination as follows: –
1: Whether the Lower Court adopted the right procedure under the law in its treatment of the appellant’s defence of alibi, and if not, whether this has not led to a miscarriage of justice? (Grounds 1, 2, 3 & 4)
2: Whether the prosecution proved that the appellant was present at the scene of the crime vis-a-vis his defence of alibi upon the evidence. (Grounds 5 & 6)
3: Whether the offence of murder was proved beyond reasonable doubt as required by law against the appellant to warrant his conviction and sentence to death by hanging? (Grounds 7, 8, 9, 10 & 11)
The Respondent’s Brief of Argument was settled by ARTHUR, ANDREW SEWENIOWOR Esq., it was filed on 18th September, 2018. Learned counsel canvassed two issues for determination thus:-
1: Whether there was any valid defence of alibi properly raised by the appellant which the trial Judge adopted a wrong procedure in its consideration, in holding that the appellant was identified as one of the perpetrators of the murder of the deceased, and if any miscarriage of justice had been occasioned thereof. (Grounds 1, 2, 3, 4, 5 and 6)
2: Whether the offence of murder was proved beyond reasonable doubt by the respondent as required by law against the appellant to warrant his conviction and sentence. (Grounds 7, 8, 9, 10 and 11)
In determining this appeal, I will adopt the three issues canvassed by learned senior counsel to the appellant. I will also consider the argument by learned senior counsel to the appellant in the Reply Brief filed on 25th September, 2018 in determining this appeal. While adopting their respective briefs of argument on 26th September, 2018 learned counsel, by way of expatiation made some pertinent submission which I will also consider in determining this appeal.
Learned senior counsel while making his submission argued issues 1 and 2 together. He however reframed the two issues thus: –
A: Wrong Procedure: (paragraphs A.2 to A.12 on pages 4 – 5 of the Appellant’s Brief).
B: Not Proved that Appellant was at scene of Crime: (paragraphs A.13 to A.31 on pages 6 – 10 of the Appellant’s Brief).
I have considered the submission by learned senior counsel in respect to the plea of alibi raised by the second accused person in Appeal No. CA/PH/26CR/2017. The only point of divergence is that the alibi pleaded by the appellant is not the same as that pleaded by the said second accused person.
In his extra-judicial statement to the police (marked as Exhibit ?B? during trial) and his testimony as D.W.3 on pages 174 to 178 of the record of appeal the appellant, by way of alibi stated that on the day of the incident:-
“I was in my working place on that day my working place is at Bedrock School. On that day I left the house at about 7 O’clock in the morning and arrived at my working place between 7:30 to 8 am that morning. When I got to where I work, the caterpillar that I was using had a fault. It had the fault before that day some mechanics came from Port Harcourt to come and repair the caterpillar. I was with the mechanic to start the machine anytime he requested me to do so. We were together repairing the machine. Freedom Egba my said Headman was also there with us. We were not able to conclude the repairs of that caterpillar on that day… I closed about 5 pm that day because of the repairs being effected on the caterpillar. As I closed before I got the house, it was almost 5:30 to 6 O’clock. I normally used to close at 4 pm?. I was about to get into my house that 5 to 6 O’clock, a neighbour that always passed by the front of my house asked me whether I was just coming from work and I said yes. He then said my Community that is Okutukutu, Etegwe and Opolo Community were having crisis. I answered enhen then I just went into my house to have my bath as I was tired and later slept I do not know the name of that my neighbour who told me that there was crisis that morning.” (page 175 of the record of appeal).
That was the defence of alibi by the appellant. He called his headman one Mr. Friday Egba who testified as D.W.2 and his wife Mrs. Gift Izibefien who testified as D.W.1 (pages 167 to 170 of the record of appeal) and they corroborated his testimony. However, during cross-examination D.W.1 punctured a gaping hole in her husband?s alibi when she stated thus:-
“I was at home before my husband returned from work on that 21st of May, 2015. I told this Court that it was neighbour (sic) who told my husband of what happened between Etegwe, Okutukutu and Opolo people with Policemen that day. That man has been our neighbour since we started staying about 10 to 12 years ago. The man’s house is next to our house I do not know the name of this neighbour we have never had a quarrel with our said neighbour”
D.W.1 stated that she did not know the name of their neighbour of more than 10 years who told her husband of the incident between the Opolo Community and Okutukutu/Etegwe Communities. Given our African culture and setting, it is not possible to stay for more than 10 years next to a neighbour?s house without knowing his name. In the case of the Appellant he told the investigating police officer, who testified as P.W.8 (Newstyle Ogiori) that he was at work on the day of the incident. When he (P.W.8) visited the work place of the appellant and met the owner of the school who was unable to confirm that he was at his place of work on that day. The appellant in his testimony claimed that he spent the whole day with his co-worker (D.W.2), not at his place of work but at another place where they were fixing a caterpillar belonging to their company. I agree with the learned trial Judge in his judgment when he stated thus: –
“Suffice it to say that the alibi of the 1st accused person (Appellant) was not raised with sufficient particulars to afford the investigating police officer the opportunity of properly investigating same. The presumption in his case in this instance cannot be made in favour of the accused person.” (page 206 of the record of appeal).
In the circumstances, I adopt my finding in the sister Appeal No.CA/PH/26CR/2017 where the co-accused to the appellant was also found guilty and I upheld that decision by the learned trial Judge in my judgment which I delivered earlier. In that Judgment, I held that: –
“This finding by the learned trial Judge cannot be faulted by this Court as it did not occasioned a miscarriage of justice on the appellant considering the facts of this case.”
On the second sub issue that was not proved that the appellant was at the scene of crime I also adopt my finding in Appeal No. CA/PH/26CR/2017 considering the fact that the same witnesses testified before the lower Court in respect to the fact that the appellant and his co-accused were positively identified by eye witnesses at the scene of crime on 21st May, 2015. I copiously quoted the testimonies of P.W.1 Mopenze Morning on pages 140 – 142 of the record of appeal; P.W.2, Chief Lagumo Etim on pages 142 – 145 of the record of appeal and P.W.5. Ishie Goodluck on pages 153 – 154 of the record of appeal who in their testimonies stated that they saw the appellant while he, in company of his co-accused, were attacking the deceased with machete on the day of the incident.
I also noted that the testimonies of these three witnesses was not punctured or discredited during cross-examination and the learned trial Judge who had the advantage of seeing them and their demeanour in the witness box believed them and held thus:
“These are the witnesses who gave direct evidence of the involvement of the accused person (sic) in the attack that resulted in the death of the deceased.” (page 217 of the record of appeal)
The law is trite that if the prosecution adduces sufficient evidence to fix the accused at the scene of crime at the material time, then his alibi is logically and inevitably demolished and that would be enough to render such plea ineffective as a defence. See:-
(1) NJOVENS & ORS V THE STATE (1973) 1 NMLR 331.
(2) BELLO V POLICE (1959) WRNLR 124.
(3) R V TURNER (1957) 2 RNLR 34.
(4) GACHI & ORS V THE STATE (1965) NWLR 333.
(5) YANOR V THE STATE (2010) NMLR 337
In GABRIEL OGOGOVIE V THE STATE (2016) LPELR (SC) the Supreme Court held at page 59 per SANUSI JSC: –
“I must reiterate here, that although the failure on the part of the prosecution to check or investigate an alibi raised by an accused person may cast doubt on the reliability of the case of the prosecution and may even lead to the acquittal of an accused, however, in a situation where there is evidence, direct or circumstantial, fixing the accused at the scene of the crime, then the prosecutions failure to check the alibi will not be fatal.”
The finding by learned trial Judge that the appellant was fixed at the scene of murder and that he was among those who committed the crime is not perverse. There is no contradiction or material contradictions in the testimonies of the respondents’ witnesses as erroneously submitted by learned counsel to the appellant.
I took note of the fact that on pages 214 – 218 of the record of appeal, the learned trial Judge evaluated the evidence of the positive identification of the appellant at the scene of crime as testified by P.W.1, P.W.2 and P.W.5. In light of the positive identification of the appellant by the three prosecution witnesses at the scene of crime, which evidence was relied upon by the learned trial Judge, this Court being an appellate Court cannot interfere with that finding of fact. In ADE & ANOR V FEDERAL REPUBLIC OF NIGERIA (2000) 18 WRN 13 at 22, this Court held thus:-
“However, it is also the law that where there is visual and positive identification of the accused person by a witness whose evidence is believed by the lower Court, the appellate Court should not disturb such a finding.” per UBAEZONU JCA.
I therefore adopt my finding on this issue in CA/PH/26CR/2017 in resolving issues 1 and 2 canvassed by the appellant in favour of the respondent.
Issue 3 canvassed by learned senior counsel to the appellant is:-
“Whether the offence of murder was proved beyond reasonable doubt as required by law against the appellant to warrant his conviction and sentence to death by hanging
I have considered the submission by learned counsel to the parties on this issue and my holdings on issues 1 and 2 above. One of the issues canvassed by learned senior counsel to the appellant on this issue is that the learned trial Judge did not make any finding that the appellant inflicted the fatal blow upon the deceased or that it was this attack that caused the death. On this point, I agree with the finding by the learned trial Judge on page 220 of the record of appeal wherein he stated thus:-
“Even if it is argued that the accused persons were not the persons who inflicted the fatal blow that killed the deceased, having been identified on the scene with offensive weapons, they are assumed as having a common intention to commit an unlawful act. Common intention can be inferred from the circumstances described in the evidence and need not be proved by express agreement of accused persons.”
In OZANA UBIERHO V THE STATE (2005) LPELR ? 3283 (SC) the Supreme Court while pronouncing on the liability in furtherance of common intention to commit a crime held on page 14 paragraphs C ? E per KATSINA-ALU JSC thus:-
“This Court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence. See Muonwem V The Queen (1963) 1 All NLR 95; Ofor V The Queen (1955) 15 WACA 4.”
See also THE STATE V MOSHOOD OLADIMEJI (2003) LPELR 3225 (SC) on page 11 paragraphs D – F; JIMOH MICHAEL V THE STATE (2008) LPELR 1874 (SC) pages 14 15 paragraphs A D per MUSDAPHER, JSC. In FRANK OPOKU ANIM & ORS V FEDERAL REPUBLIC OF NIGERIA (2014) LPELR 23219 (CA) my learned brother SAULAWA JCA while pronouncing on common intention to commit a crime held on pages 30 31 paragraphs E B as follows: –
“I think there is a need to reiterate the trite and well settled principle, to the effect thus: Once a criminal act is committed by two or more persons acting in concert in furtherance of their common intention, each and every one of them is liable for the consequence of the act. It does not matter which of the accused did what. In other words, where two or more persons act in concert in committing an offence, one of them can be convicted for that offence. See IDIOK V STATE (2006) 12 NWLR {Pt. 993} at 23 – 24 paragraphs H – D. per Omokri, JCA (of blessed memory); ALAGBA V R. (1950) 19 NLR 129; NWALI V STATE (1971) 1 NMLR 78; CULANI V STATE (1960) 1 All NLR 260; MIRI V THE STATE (1968) NMLR 119; ODIGIJI V STATE (1976) 7 SC 141.”
Upon considering the above cited authorities it is my finding that even if the appellant was not identified as the one that inflicted the particular machete blow that killed the deceased, the fact that he was positively identified by three eye witness (P.W.1, P.W.2 and P.W.5) on the scene of the crime while holding a machete in company of other accused persons who were equally armed with dangerous weapons lead to the irresistible conclusion that each of the attackers, including the appellant is deemed to have committed the offence.
The other issue argued by learned senior counsel to the appellant is that P.W.1, P.W.2 and P.W.5 identified some suspects among those that attacked the deceased who were later released by the police during their investigation. Learned counsel mentioned one cripple called Odense who was released by the police, thus implying that the appellant ought to have been released by the police also. On this, I also adopt the holding by the learned trial Judge on pages 222 to 223 of the record of appeal where he stated: –
“Counsel for the accused persons raised the issue of the other persons arrested by the police as a result of statements of the witnesses in this case but who were later released, as evidence of innocence of the accused persons. My response to that submission is that the prerogative to try suspects arrested by the police rest with them which they can restrain from doing for whatever reason. What this Court is concerned with is the evidence brought before it in prosecution of the case. It cannot delve into speculating as to why the prosecution choose to try some suspects while leaving others free. This Court is more concerned whether sufficient evidence have been brought before it in proof of the guilt of the accused persons.”
This holding by the learned trial Judge is the correct position of the law and I so hold. In other words, a Judge ought to and should be concerned solely with the evidence proffered before him in arriving at the decision whether enough evidence was adduced that support the charge against an accused person.
On the submission by learned senior counsel to the appellant that the Judge ought to have cautioned himself while considering the evidence of the ‘Opolo witnesses’ having regard to the simmering land dispute between that community and the Okutukutu and Etegwe Communities. It is my finding that this submission is in error because there is no longer any dispute between the Opolo Community and Okutukutu/Etegwe Communities since the land dispute was pronounced upon by the apex Court in the land in favour of the Opolo Community. Moreover the person killed by the appellant was not a member of either of the three communities. Kolu Edi the deceased was a staff in the office of the Surveyor General of Bayelsa State who went to perform this legitimate duty on the directive of his superiors.
There is no evidence to show that either the appellant or P.W.1, P.W.2 and P.W.5 are familiar with the deceased. This put paid to the assertion by learned senior counsel to the appellant that the prosecution witnesses’ evidence was tainted with bias or was prejudicial to the accused. I also resolved this issue against the appellant.
In conclusion it is the judgment of this Court that this appeal lacks merit, it is hereby dismissed. The verdict of the lower Court wherein it found the accused person guilty of the offence of murder contrary to Section 247(1) of the Criminal Code Law, Cap C14 Laws of Bayelsa State, 2006 and sentenced him to be hanged by the neck until he is dead is affirmed by me.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree that the appeal lacks merit and I dismiss it. I abide by the consequential Order.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had a preview of the judgment delivered by my learned brother BITRUS GYARAZAMA SANGA, JCA. I concur with the reasoning and conclusion of my respected learned brother. The appeal, for lacking merit is dismissed. The verdict of the lower Court wherein it found the accused person guilty of the offence of murder contrary to Section 247(1) of the Criminal Code Law, Cap C14 Laws of Bayelsa State, 2006 and sentenced him to be hanged by the neck until he is dead is also affirmed by me.
Appearances:
B. A. M. Fashanu,SANFor Appellant(s)
Arthur Andre Seweniowor with him, Ebiere Ekpese OlanrewajuFor Respondent(s)
