NEWMAN OSI v. THE STATE
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2018
IDENTIFICATION OF ACCUSED
It is trite that the question whether an accused person is properly identified as a party to the commission of a criminal act is a question of fact to be considered by the trial Judge on the evidence adduced for that purpose. Therefore, where there is a visual and positive identification of the accused at the scene of the crime which is believed by the trial Judge, the Appellate Court should normally not disturb such a finding. per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
RECOGNITION AND IDENTIFICATION
Recognition has been held to be undoubtedly more reliable than identification of a stranger. Though a Judge is still required to warn himself that mistake in recognition is still possible. per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
NEWMAN OSI Appellant(s)
THE STATE Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)
This appeal is against the judgment of the High Court of Delta State sitting in Sapele and delivered by C.E. Achilefu J., on the 8th day of December, 2011, wherein the Appellant was convicted on a two count charge of conspiracy to commit armed robbery and armed robbery and consequently sentenced to death by hanging.
Briefly stated, the facts of the case as presented by the prosecution was that on the 24/12/2004, one Vote Eyitemi was in his house when at about 11 pm, two boys armed with guns came into his sitting room. They pointed the guns at him and asked him and his family to lie down or else blood will flow. They later asked his wife to get up to bring the money they have. They followed his wife into the room where she collected the money from the top of the wardrobe which total sum was N24,000. The boys came back to the sitting room and collected the sum of N400 on top of the table as well as the Nokia 3310 mobile phone and a wrist watch belonging to the said Vote Eyitemi. All these happened while he was still lying down with his four children.
When they finished the robbers asked his wife to lock the door and they left. One of Mr. Eyitemis daughter then told him that she knew the Appellant and that he lives at the back of the place where her mother works. His son also said that he knows the Appellant.
In the morning of the 25/12/2004, Mr Eyitemi was on his way to report the matter to the police at Ghana police station when he ran into his son and daughter and they pointed at the Appellant who was then on a motorcycle. They ran after and caught up with him. Mr. Eyitemi held on to him while he sent his daughter to go and call the police at Ghana police station nearby. When the police arrived, the Appellant was taken to his house where they saw the clothes and pair of booths that the Appellant wore during the robbery. He was then taken to the police station where he made a statement.
At the trial, the prosecution called four witnesses and tendered exhibits that where admitted in evidence as Exhibits A1, A2 to E2. The Appellant in his defence testified on oath and subpoenaed one Rufus Atibaka, an Inspector of Police who testified as DW1. Thereafter the parties filed written addresses which they subsequently adopted and relied on.
In a judgment delivered on the 8th day of December, 2011, the Appellant was found guilty and convicted on the two counts charge of conspiracy to commit armed robbery and armed robbery. He was consequently sentenced to death by hanging.
Being aggrieved with the said judgment, the Appellant filed a notice of appeal containing three grounds of appeal on the 1/2/2012.
Briefs of argument were thereafter filed and exchanged by the parties who adopted same at the hearing of the appeal on the 9/4/2018.
In the Appellants brief of argument filed on 24/3/2017, the following two issues were formulated for determination:
(1) Whether the learned trial Judge properly evaluated the evidence adduced by the prosecution as it relates to the identification of the Appellant as the armed robber that struck on the night of December 24, 2004.
(2) Whether the learned trial Judge was right to have held that the Appellant ought to provide evidence for his alibi.
The Respondents brief of argument was filed on 4/8/2017, but deemed properly filed on 3/10/2017.
The two issues distilled therein for determination are
(1) Whether in view of the evidence on record, the learned trial Judge was right in law when he held that the prosecution proved the case of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt
(2) Whether the learned trial Judge was right in law when he rejected the defence of alibi raised by the Appellant
I will adopt the two issues as raised in the Appellants brief in the consideration of this appeal.
Dwelling on this issue, learned counsel for the Appellant submitted that the learned trial Judge failed to properly evaluate the evidence adduced by the prosecution as it relates to the identification of the Appellant having regard to the findings at page 187 lines 1 to 11 of the record of appeal.
Reference was also made to the evidence of the PW1, PW2 and PW3 to submit that where a suspect is known to the witness before the incident, the witness must mention this fact at the earliest opportunity and if such witness omits to mention at the earliest opportunity the name or names of the persons he saw committing the offence charged, the Court must be wary of acting on the evidence given later by such witness unless satisfactory explanation is given for the failure. Reliance was then placed on the case of ISAH VS. THE STATE (2008) All FWLR (PT. 443) 1243 AT 1250.
Further argument was proffered to the effect that, if the PW2 and PW3 knew the Appellant before the alleged robbery and they recognised him to be one of the robbers, they ought to have mentioned his name in their statement to the police.
It was also submitted that the Court relied on the evidence of the PW1 on his identification of the clothes and boot found in the Appellants house without regard to the fact that someone else may have the same type of outfit and this makes the evidence of PW1 inconclusive. On the danger of identification evidence, reference was made to the case of OKOSI VS. STATE (1989) NWLR (PT. 100) 642.
Furthermore it was contended that from the totality of the evidence of PW1, PW2 and PW3 the identity of the robber who struck on the night of 24/12/2004 was not properly addressed by the learned trial Judge.
Herein learned counsel for the Appellant referred to the extra-judicial statement of the Appellant made on 5/2/2005 to the effect that on the night of the incident he was with his mother and sisters dancing. But this alibi was not investigated by the police by way of confirming his story from the persons he said he was with that night.
On the duty of the police to investigate an alibi properly raised by an accused person, learned counsel referred to the following authorities. STATE VS. AZEEZ (2008) 14 NWLR (PT. 1108) 439 AT 505; SUNDAY VS. STATE (2010) 18 NWLR (PT. 1224) 223; NDUKWE VS. THE STATE (2009) 7 NWLR (PT. 1139) 43 AT 71; SAKA VS THE STATE (2006) All FWLR (PT. 335) 148.
Learned counsel further referred to the testimony of one Inspector Atibaka who was subpoenaed by the Appellant and testified as DW1 but who died during the course of cross-examination thereby leading the trial Court to discountenance his evidence as inconclusive. He then contended that it was wrong for the trial Court to have so discountenanced the said evidence of the DW1 having been cross-examined, though not to conclusion before the matter was adjourned for continuation of cross-examination.
He added that it was therefore erroneous for the learned trial Judge to hold that the Appellant ought to have called evidence to prove the Alibi because the burden on the prosecution never shifts. This Court was then urged to allow the appeal and set aside the judgment of the trial Court.
Replying as per their own issue 1, learned counsel for the Respondent referred to the evidence on record as per the testimonies of the prosecution witnesses to submit that the facts as presented therein suffices to justify the holding by the learned trial Judge that the prosecution proved its case beyond reasonable doubt.
On the count of conspiracy, it was submitted that all the prosecution needs to prove is the agreement of two or more persons to do or cause to be done an illegal act or a legal act by illegal means and this is done either by direct evidence or inference from illegal acts of the accused person. Vide NJOVENS VS. STATE (1998) 1 ACLR 225 AT 263 264 and BOUWOR VS. THE STATE (2016) 4 NWLR 295.
He added that there is no direct oral evidence of conspiracy between the Appellant and the other robber said to be at large in robbing the PW1, hence the learned trial Judge in convicting the Appellant for the offence of conspiracy drew inference from the criminal act of the armed robbery. It was further noted that the Appellant did not challenge his conviction for the offence of conspiracy.
On the offence of armed robbery, learned counsel listed the three ingredients that must be proved by the prosecution in order to secure a conviction as held in the following cases. EKE VS. THE STATE (2011) VOL. 200 LRCN 143; IKPO VS. THE STATE (2016) 10 NWLR (PT. 1521) 501; ATTAH VS. THE STATE (2010) 10 NWLR (PT. 1201) 190.
He noted that the Appellant is not contesting the fact that there was robbery incident on the 24/12/2004 and that the robbery was an armed robbery, rather he is challenging the fact that he was not one of the robbers that robbed the PW1.
On this learned counsel submitted that there is an unrebutted evidence that the PW2 and PW3 knew the Appellant before the robbery incident and the PW2 immediately informed PW1 about it when the robbers left and they also arrested the Appellant the next day and handed him over to the police.
He added that this is a case of recognition rather than an issue of identification in which case it will be futile for the police to conduct an identification parade.
On the assertion by the Appellants counsel that the prosecution witnesses failed to mention the name of the Appellant in their extra-judicial statement. It was submitted that the prosecution witnesses never alluded to the fact that they knew the Appellant by name to warrant their mentioning it to the police and it is not in all cases that the name and physical feature of an accused person must be given.
It was also contended that the law does not require the prosecution to tender the extra-judicial statement of prosecution witnesses in Court except for the purpose of cross-examination and it cannot be relied upon by the Court unless it is admitted in evidence. Reliance was placed on the case of ESANGBEDO VS. STATE (1989) 10 NWLR (PT. 113) 57 and STATE VS. OGBUBUNJO (2001) 1 SC (PT. 1) 90.
On the finding of the learned trial Judge with regard to the inconclusive evidence of DW1 Inspector Atibaka, it was submitted that since the Appellant did not appeal against the said finding, he is deemed to have admitted same as per the decision in DABUP VS. KOLO (1993) 12 SCNJ 7 and AWODI & ANOR VS. AJAGBE (2015) VOL. 242 LRCN 99.
On issue 2, learned counsel submitted that the learned trial Judge was right in law to have rejected the evidence of alibi as raised by the Appellant given the unchallenged evidence of the prosecution witnesses fixing the Appellant to the scene of crime because the law is trite that once there is a credible evidence believed by the Court and fixing the accused person to the scene of crime, the defence of alibi cannot be sustainable. He cited the following cases in support: NDUKWE VS. THE STATE (2009) 7 NWLR (PT. 1139) 43; NJOVENS VS. STATE (1998) 1 ACLR 109; BALOGUN VS. AG. OGUN STATE (2001) 94 LRCN 211.
Also relying on the case of ESANGBEDO VS. STATE and NDUKWE VS. STATE (supra), it was submitted that the learned trial Judge was right to have held that the failure by the Appellant to call as witnesses his mother and siblings who he said he was with that night weakened the credibility of his defence. It was therefore urged on this Court to resolve the two issues against the Appellant and dismiss the appeal.
Now, dealing with issue 1, the Appellant herein was in the trial Court charged with two counts of conspiracy to commit armed robbery and armed robbery under Section 5(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Volume (xxi) Laws of the Federation of Nigeria 1990.
Firstly, for the prosecution to succeed in proof of armed robbery, there ought to be proof beyond reasonable doubt:
(a) That there was a robbery or series of robberies;
(b) That the robbery was an armed robbery;
(c) That the accused was one of those who took part in the armed robbery.
See BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465; AFOLALU VS. THE STATE (2010) 43 NSCQR 227; OGUDO VS. THE STATE (2011) 45 NSCQR (PT. 278); ANI VS. THE STATE (2003) 11 NWLR (PT. 830) 145 and NWACHUKWU VS. THE STATE (1985) 1 NWLR (PT. 11) 218.
The contention of the learned counsel for the Appellant herein is that in the main the third ingredient of the offence of armed robbery was not proved beyond reasonable doubt by the prosecution to warrant a finding of guilt as held by the learned trial Judge, given the fact that there was no proper identification of the Appellant by the prosecution witnesses who though claimed to have known the Appellant before the day of the robbery did not however mention his name either to the police or in their extra-judicial statement. Also that the clothes and boot found in the Appellants house and claimed by PW1 to be the ones worn by the Appellant on the night of the robbery is not conclusive because someone else could have the same outfit and the learned trial Judge did not properly evaluate the relevant evidence relating to the identification of the Appellant.
I have carefully perused the record of proceedings in the trial Court with particular reference to the testimony of the prosecution witnesses. The stories as told by the PW1, PW2 and PW3 as to what transpired on the night of 25/12/2004 are quite relevant in deciding whether the Appellant counsels contention and postulations are cogent. For the PW1, relevant part of his testimony reads thus:
PW1: Sworn on Holy Bible and states in English language. My name is Vote Eyitemi. I live at Ogberikoko Road, Sapele. I am a technician and also am a trader.
Yes I know Igho Eyitemi. She is my wife. Yes I know Ese Eyitemi, she is my daughter. Yes I know Oboakporhoro Eyitemi. He is my son. Yes I know the accused person. On 24/12/2004, I returned from my store to my house. Then I tied towel and sat in my parlour. Suddenly at about 11.00pm I saw two boys just walked into the parlour, they were holding gun. The two of them were holding gun. The accused person pointed at me with the gun and they said I should lie down or else blood will flow. Then they ordered my wife to get up, then he said all the money that I have in this house I should show my wife where the money is. I told my wife to look on top of the wardrobe that all the money is there. As the accused person followed my wife inside and collected the money that is inside my room. Then accused person came to the parlour and collected the sum of N400.00 on top of the table. The amount that was collected inside from the wardrobe in the room is N24,000.00 (Twenty-four Thousand Naira). While all these was going on, my children were still lying down. The accused alone collected my Nokia set i.e. 3310 valued at N11,000.00 (Eleven Thousand Naira) Accused also collected my golden wrist watch valued N1,500.00.
Accused also collected my necklace. On that day there was no NEPA light. I put on my generator and there were two florescent light in the parlour. Accused was standing under the florescent light on that day. He told my wife to go and lock the door. On that day the accused was putting on a sweater sewn together with the cap. The face was open and the two ears were covered.
Further at page 61 he added thus:
Then the police came and took us to the main station. Then the police asked me how I identified the accused person. I told the police the type of dress he wore to my house and the boot shoe. The policeman took another police man and we went to the accused persons house immediately. When we entered the house with the police, the police said I should look around if I can identify the thing he wore to my house on that day. Then I saw the clothes that he wore to my house on that day with the booth. The police collected it to the main station. Then I made statement at the police station on that 25/12/04. Yes I also made statement to the police that came from Asaba on 25/2/05. Yes I can identify the cloth and the booth. Yes this was the cloth and the booth accused person was putting on the day of the incident.
Under cross-examination PW1 further stated that:-
All I told the Court is what I told the police because I saw the accused person very well on that day. Yes I told the police in my statement that I saw the accused person very clearly. Yes I told the police that I put on my generator light.
For the PW2, her testimony is virtually similar to that of the PW1 in terms of what transpired on the night of the robbery. She added at page 65 of the record that:
This accused person ordered my mum to follow him to the room to collect the money, he asked my mother to lock the door and she did. They now left. When my mother locked the door I told my dad that I have been seeing the accused person around this area. So we went to business centre to call the line of my daddys handset. It rang and there was no response. So my daddy said first thing tomorrow morning we will go and make a statement to the police. So on 25/12/04, my daddy left that morning to the police station. I told my daddy that I and my younger sister and younger brother will go for a trace.
So my daddy left. I mean we were going to search for the accused person. We left for the search. As we were going suddenly we saw the accused person with a motor bike. He was carried by somebody. He was steering at me and I was steering at him. So I rushed to call my father. As I was talking to my father my younger by name Oboakporhor came and told me that the boy has passed so we all took a bike after him. As we were going we saw my dad on his way back. So I now told my father that, that is the accused person going on top of a motor bike. We now followed the accused with a bike and my dad with a car and we got at him at Ghana. When we got him my father asked me to get him a policeman at Ghana police station, Sapele. So I did and the policeman arrested the accused person and took him to the main station, Sapele. The place where we caught up with the accused person is not far from the Ghana police station, Sapele.
Under cross-examination PW2 stated thus:
I knew the accused person very well because I have been seeing him around my area. I am telling the truth. When they entered the house I was sitting on the floor in the centre of the palour.
The PW3 also testified to the effect that:
Yes I know the accused person before this case. The poultry that I use to work is in front of the accused persons house and then he used to pass front of our house at Ugberikoko Road. On 24/12/04, at 11.00 p.m. I was in the house with my husband and children, we were watching television, suddenly one of my children called Okiemute said she was going to toilet. Suddenly we saw two boys walked into the house. One of them is the accused. Two seconds we were still looking him. He was holding gun. One boy was behind him. The accused person was putting on sweater sewn together with cap with the ear covered remaining only the face was open and he was putting on trousers with army booth. Then he was pointing the gun at my husband direct. He ordered all of us to lie down. He asked me to get up and that my husband should surrender all the money in the house. Then my husband said I should go into his room and I should check on top of the wardrobe that there is money there. The accused followed me to the room to collect the money.
Then I gave him the N24,000.00 from the wardrobe and he also collected N400.00 on top of the centre table in the parlour. He asked me to lock the door and they left. Then on 25/12/04 policemen now brought the accused person to my house with a vehicle and I told them that the accused person is the boy.
The above set out testimonies of the PW1 to PW3 were not contradicted or controverted by the defence and contains enough facts in proof of the reality that there was robbery in the house of the PW1 on the night of 24/12/2004 and that the two persons involved in the robbery were armed with guns thereby elevating it to the realm of armed robbery.
On whether the Appellant was one of the armed robbers, the evidence of the prosecution witnesses points clearly to this fact but the major complaint of the Appellant is that the learned trial Judge did not properly evaluate the evidence adduced by the prosecution as it relates to the identity of the Appellant. Moreso that the prosecution witnesses who claimed to have known him before the incident and saw him that night, did not bother to mention his name to the police, or in their extra- judicial statement.
It is trite that the question whether an accused person is properly identified as a party to the commission of a criminal act is a question of fact to be considered by the trial Judge on the evidence adduced for that purpose. Therefore, where there is a visual and positive identification of the accused at the scene of the crime which is believed by the trial Judge, the Appellate Court should normally not disturb such a finding. See NDUKWE VS. THE STATE (2009) 2 3 SC (PT. 1) 35; ATTAH VS THE STATE (2010) 3 5 SC (PT. 1) PAGE 1.
Thus in the case of ADESINA (AKA ACHAJI) VS. THE STATE (2012) 6 SC (PT. III) 114 and OCHIBA VS. THE STATE (2011) 12 SC (PT. IV) 709 the Supreme Court held that in order to ascribe any probative value to the evidence of an eye witness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues:
(1) Circumstances in which the eye witness saw the suspect: was it in difficult condition
(2) The length of the time the witness saw the suspect or defendant at a glance or longer observation.
(3) The opportunity of close observation.
(4) Previous contact between the two parties.
(5) The lighting conditions.
In the light of the above detailed guiding principles, the learned trial Judge made the following finding of facts at page 187 lines 1 12:
From the evidence of PW2 and 3, they were certain that it was the accused person that visited their house on that fateful day. They all testified to the fact that the accused person was one of the robbers that raided them in their house at Ugborikoko Road, Sapele. Their evidence on the identity of the accused was not shaken by cross-examination. In addition Exhibits E1 and E2 supports their evidence on the robbery and the identity of the accused person as one of the armed robbers that raided them on the night of 24/12/2004 at their house along Ugborikoko Road, Sapele of particular relevance is the evidence of PW2, Ese Eyitemi, who testified to the fact that immediately after the incident, he told his father that she knew the accused person before the incident. She has been seeing him around the area in Ugborikoko Road, Sapele. She even confirmed that the one standing under the florescent light was the accused person and that he was armed with a gun, while the one standing by the door was carrying a long gun, the accused person carried a short gun.
Further in the same page 187 lines 13 to 19, the learned trial Judge continued thus:
Again the testimony of PW2, on 25/12/04 being the next day morning after the incident before reporting at the police station, they went in search of the accused person, while their father was on his way to the police station to report the incident, in the course of the search for the accused person, they saw accused person and got him arrested by the police. In other words, they got the accused person ever before inviting the police. The prosecution witnesses were also able to describe the cloths that accused wore on the day of the robbery incident and they also identified same i.e. Exhibits E1, E2 and F that were recovered from the house of the accused.
From the above set out findings of the learned trial Judge, I do not agree with the submission of the learned counsel for the Appellant that the learned trial Judge failed to properly evaluate the evidence adduced by the prosecution as it relates to the identity of the Appellant.
Firstly, it is not in doubt that at the time of the robbery a generator was on in the house of the PW1 and he was in the sitting room with his wife and children when the robbers entered the house. There is also consistent evidence from the PW1 to PW3 that two florescent lights were on in the sitting room and the Appellant stood under them. For the PW1 part of his testimony reads thus:
On that day there was no NEPA light. I put on my generator and there were two florescent lights on that day.
PW2 in her own testimony also stated thus:
The accused person was dressed in a track suit with a shirt sown with the cap together. Yes I can identify it if I see it.
COURT: IDI identified.
He was wearing it and tied his head. We were seeing his face clearly under a florescent bulb. I have been seeing him, I know him. It is not difficult for me to recognise him.
For the PW3, she testified inter alia that:
Yes I know the accused person before this case. The poultry that I use to work is in front of the accused persons house and then he used to pass front of our house at Ugberikoko Road.
She stated further in her testimony as follows:
Suddenly we saw two boys walked into the house. One of them is the accused. Two seconds we were still looking him. He was holding gun, one boy was behind him. The accused person was putting on sweater sewn together with cap with the ear covered remaining only the face was open and he was putting on trousers with army booth.
From the above detailed and unshaken testimonies of the prosecution witness, I cannot but agree with the findings of the learned trial Judge as earlier set out and which findings were borne out of a proper evaluation of the evidence adduced before the Court.
I am also not unmindful of the five guiding principles as prescribed by the Supreme Court in the case of OCHIBA VS. THE STATE supra and ADESINA VS. THE STATEsupra and with that in mind, I am quite convinced that given the circumstance of the robbery on 24/12/2004, the light condition in the house that very night, the proximity of the robbers to the victims which includes going into the room with the PW3 to collect money from the top of the wardrobe as well as the circumstances under which the Appellant who was known to the PW2 and PW3 before the robbery, was located the next morning, pursued and arrested by the PW1, and PW2 before they invited the police to take over from there. The issue of mistaken identity cannot stand at all.
As held in the case of NDIDI VS. STATE (2007) 5 SCNJ 274, identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. The evidence of the prosecution points wholly to no other direction than that of the Appellant as the person they saw in the house of the PW1 on the night of the robbery and this includes the fact that the PW1 and PW2 were able to identify with ease the very cloths and booth worn by the Appellant when they went for the robbery operation without much ado.
It must also be emphasised that the knowledge of the Appellant by the PW2 and PW3 was borne out of recognition of someone they had been seeing in their environment before the day of the incident and not a question of seeing him for the first time that night.
Recognition has been held to be undoubtedly more reliable than identification of a stranger. Though a Judge is still required to warn himself that mistake in recognition is still possible. See ABDULLAHI VS. THE STATE (2008) 5 6 SC (PT. 1) page 1. In the instant case however, the Appellant was recognised by PW2 and PW3 whose manner of corroboration strengthens their prior knowledge of the Appellant as someone who lives in their area.
Learned counsel for the Appellant also complained that the PW1, PW2 and PW3 never mentioned the name of the Appellant to the police at the earliest opportunity neither did they do so in their extra-judicial statements notwithstanding that they had said that they knew him before that day. It is correct to state that failure of witnesses to mention the name of an accused person who is known to them and allegedly robbed them at the first opportunity cast a grave doubt on their evidence. See BOZIN VS. THE STATE (1985) 7 SC 450.
However in the case under consideration, the victims or witnesses never said that they knew the name of the Appellant or had interacted with him at any time prior to the incident.
They only said that they had been seeing him as he lives in the same area with them. Certainly, it is not impossible to know or recognise a person very well without knowing his name.
I must also add here that the law is trite that identification parade is unnecessary where:
(i) There is clear and uncontradicted eye witness account and identification of the person who allegedly committed the offence.
(ii) Witnesses knew the suspect previously.
(iii) The accused is linked to the offence by convincing, cogent and compelling evidence.
See SAMUEL ATTAH VS. THE STATE (2010) 3 5 SC (Pt. 1) page 1; AFOLALU VS. THE STATE (2010) 5 7 SC (PT.II) 93.
In the instant case, there is cogent and uncontradicted account of the identification of the Appellant by PW2 and PW3 who knew the Appellant previously and also testified graphically on the role he played during the robbery on the night of 24/12/2004. On the contention by counsel for the Appellant that it was wrong for the learned trial Judge to have discountenanced the evidence of the DW1, Inspector Atiaba who died midway into giving evidence during cross-examination.
The current state of the law is that where the evidence of a witness is inconclusive either by way of death or abandonment of the hearing, such half baked evidence will have no probative value and as such is subject to being discountenanced or expunged by the trial Court. See the case of OLOMO VS. THE STATE (2015) All FWLR (PT. 779) 1028 where this Court held thus:
As I stated earlier, the PW2 did not complete his examination. He was also not cross-examined. In other words, the PW2 abandoned his testimony. The law is that the evidence of a witness who abandons his testimony has no evidential value. Such evidence is irrelevant and of no evidential value and should be discountenanced by the Court in the assessment and evaluation of evidence.
See also NOSA OMORUYI VS. THE STATE. APPEAL NO. CA/B/48C/2012 (Judgment of this Court delivered on 12/4/2018) and F.R.N. VS. USMAN (2012) 1 MJSC (PT. 1) 25.
In the instant case, it is not in doubt that the DW1 did not conclude his testimony at the trial having died during the course of cross-examination as rightly stated by the Appellants counsel. In this regard, his evidence remains inconclusive and as such the learned trial Judge was right to have discountenanced it. Accordingly, I resolve this issue against the Appellant.
On issue two, which is whether the learned trial Judge was right to have held that the Appellant ought to provide evidence of his alibi. The contention of the learned counsel for the Appellant is that in his extra-judicial statement made on 5/2/2005, the Appellant stated that at the time of the alleged robbery on 24/12/2004, he was with his mother and sisters dancing but the alibi was not investigated by the police who has the onus to do so. Therefore it was wrong for the learned trial Judge to have held that the Appellant ought to have called evidence to prove his alibi.
Now alibi is 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 offence and could not have possibly been on the scene of a crime to partake in it. See OZAKI VS. THE STATE (1990) 1 NWLR (PT. 124) 92; UMANI VS. THE STATE (1988) 1 NWLR (PT. 70) 274; EYISI VS. THE STATE (2000) 12 SCNJ 104; NWABUEZE VS. THE STATE (1988) 4 NWLR (PT. 86) 16.
Blacks Law Dictionary 9th Edition at page 84 defines alibi as The fact or state of having been elsewhere when an offence was committed.
Thus, where an accused person raises the defence of alibi and gives details of facts and circumstances of his whereabout during the time the alleged crime took place, the prosecution is under obligation to investigate that alibi in order to verify and ascertain its truthfulness or otherwise. Where the prosecution fails to investigate the circumstances given by the accused person as to his whereabout during the commission of the crime, the defence of alibi is deemed to be unrebutted and renders the acquittal of the accused person a possibility. See GACHI VS. THE STATE (1965) NMLR 333; ALMU VS. THE STATE (2005) All FWLR (PT. 1283) 63; ODU VS. THE STATE (2001) 6 NSCQR 385; ABDULLAHI VS. THE STATE (2005) All FWLR (PT. 263) 698.
However, where the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of crime, his alibi is thereby logically and physically demolished and that will be sufficient to render such plea of alibi ineffective as a defence. See NJOVENS VS. THE STATE (1973) 1 NMLR 330; ARCHIBONG VS. THE STATE (2000) All FWLR (PT. 323) 1747. In other words, where an accused person is unequivocally pinned to the locus in quo as one who committed the offence, the defence of alibi no more avails the accused person. This is because the defence by the accused person that he was elsewhere at the material time the offence was committed is destroyed by the unequivocal evidence of witnesses tying him to the locus in quo as one who committed the offence. Where the prosecution adduced cogent evidence of the physical presence of the accused at the scene of crime, the prosecution is relieved of calling any further evidence to destroy the alibi raised. See SOWEMIMO VS. THE STATE (2004) 4 SCM 207; BASHAYA VS. THE STATE (1998) 4 SCNJ 210; ARCHIBONG VS. THE STATE (2006) 5 SCNJ 202.
In the instant case, the learned counsel for the Appellant is of the stance that having raised the alibi to the effect that on the night of the 24/12/2004 when the alleged robbery took place, the Appellant was with his mother and sisters in his house dancing, it ought to have been investigated by the police. It is true that this fact was not investigated by the police even though it was so stated in the Appellants extra-judicial statement. While I agree that the burden of disproving a defence of alibi rest constantly on the prosecution vide UMANI VS. STATE (1988) 2 SC 88, however, where an accused person raised a defence that his alibi was not investigated, he can still be convicted if there is a stronger and credible evidence before the Court which falsified the alibi. In other words, where there is positive evidence which cancels the alibi raised by an accused person, the failure to investigate the alibi would not be fatal to a conviction. See AIGUOREGHIAN VS. THE STATE (2004) 2 SCM 39 and MONDAY ODU VS. THE STATE (2001) 6 SCM 156.
In the instant case and as earlier stated, there is overwhelming evidence from the prosecution fixing the Appellant at the scene of the armed robbery committed on the 24/12/2004 in which case the defence of alibi not being investigated by the police will not be adverse to the prosecutions case. See also MICHAEL HAUSA VS. THE STATE (1994) 7 8 SCNJ 144. In this case there is a visual identification evidence of the Appellant by the prosecution witnesses which the Court believed and such evidence, no doubt will effectively destroy the defence of alibi raised by the Appellant, see AFOLALU VS. THE STATE supra. This issue is accordingly resolved against the Appellant.
On the whole, this appeal is found to be lacking in merit and it is hereby dismissed.
The judgment of the High Court of Delta State, sitting in Sapele and delivered on the 8th day of December, 2011 is hereby affirmed.
PHILOMENA MBUA EKPE, J.C.A.: I read in advance the judgment delivered by learned brother S.C. OSEJI, JCA. My Lord has dealt with all the issues formulated by both parties and I am in total agreement with the reasoning and conclusions reached therein.
Having resolved the issues against the Appellant, the defence of alibi no more avails the accused person. It is also my humble view that this appeal is unmeritorious and it is hereby dismissed. The judgment of the High Court of Delta State, sitting in Sapele and delivered on 8th day of December, 2011 is hereby affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA.
The criminal allegations levelled against the appellant were conclusively proved, as required by law, by the prosecution and the appellant has not advanced any reason for me to disturb the decision of the trial Court. It is for these reasons and the more comprehensive reasons given by my learned brother that I also dismiss this appeal and affirm the judgment of the trial Court.
Chief Olivia Agbajoh with him, Oghenekevwe Davis (Mrs)For Appellant
O.F. Enenmo Director Appeals (Ministry of Justice, Delta State)For Respondent