OGHENERUEMU IBANE v. THE STATE
(2012)LCN/5581(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/B/325C/2008
RATIO
CRIMINAL LAW: DISTINCTION BETWEEN RECOGNITION AND IDENTIFICATION
It is established that, there is a distinction between recognition and identification of an accused person. In the case of: Woru v. State (2011) All FWLR (Pt.602) p. 1644, Nweze JCA, cited with approval the case of: Nwabueze v. State (1988) 4 NWLR (pt. 85) p. 16, where oputa JSC consecrates the difference in the distinction between and the judicial consequences of “recognition” and “identification”. The learned Nweze JCA in paras. D – F at p.1553, recaptured the said distinction as follows:
Recognition of an accused person arises when a person sees a man or woman who is well-known to him committing a crime. The natural reaction here would be to “give the name of such an accused person to the police at the earliest opportunity when he makes his statement to them during Police investigation into the alleged offence”, per oputa JSC in Nwabueze v. State.
On the other hand, the identification of an accused person arises when a person unknown to witnesses commits a crime in their presence. According to Oputa JSC in Nwabueze v. State 257 – 258, the usual reaction of the witness in this instance would be “I saw someone that night for the first time. I can identify him if I see him again”. In such a situation, the identity of the accused person becomes a fact in issue or relevant fact. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
CRIMINAL LAW: MEANING, PURPOSE AND CONSEQUENCES OF THE DEFENCE OF ALIBI
On the meaning, purpose and consequences of the defence of alibi, Tsammani, JCA, in the case of: Rasaki v. State (2011) 36 W.R.N. p. 23 at p. 50, lines 10 – 45 and p. 51, lines 5 – 10, elaborately stated the age long and established legal position as follows:
Now, alibi is a complete and radical defence which has the capacity to totally exonerate an accused person from the charge preferred against him. The word alibi is a Latin word which means “elsewhere”. It captures the physical impossibility of a person being in two places at the same time. When it is raised, it means that the accused was elsewhere other than the scene of the crime alleged. It is a defence which is pleaded by a person accused of committing an offence that he was elsewhere at the time the offence was alleged to have been committed, and therefore having regard to the time and place, when and where he was alleged to have committed or participated in the commission of the offence, he could not have been present. Since the facts constituting the alibi raised by an accused are peculiarly within the knowledge of the accused, and such witness that he may provide in support of his plea of alibi, he has the evidential burden to disclose those facts. Such disclosure must be with all necessary details and particulars as to time, place and the persons he was with. The disclosure must be made at the earliest opportunity such as to transfer the burden to the Police to investigate. See Ochemaje V. The State (2008)15 NWLR (pt. 1109) 85, Ndidi v. The State (2005) 44 WRN 153; (2005)17 NWLR (Pt.953)17, Tanko v. State (supra), Afolalu v. The State (2009) 13 WRN 15; (2009) 3 NWLR (pt. 1127) 160 and Ndukwe v. The State (supra). The onus placed on the accused to establish the alibi is not as heavy as that cast on the prosecution to prove his guilt beyond reasonable doubt as required by law. The standard of proof required on the accused to establish his alibi is on the balance of Probabilities.
That being so, once the accused timeously raises the defence of alibi with full particulars on the standard required of him by law, the burden then shifts to the prosecution to investigate in order to verify such claim. In other words, where the defence of alibi is properly and correctly raised as required by law and the prosecution fails to investigate same, the court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. In that circumstance, an essential ingredient of the offence charged would be missing and therefore, it cannot be said that the accused committed or participated in the commission of the offence charged. see Azeez v. The State (2005) 8 NWLR (Pt.927) 312; (2006) All FWLR (pt.337) 485, Aje v. The State (2006) 29 WRN 75; (2006) 5 QCCR 191; (2006) 8 NWLR (pt.982) 345, Dagayya v. The State (2006) 33 WRN 1; (2006) All FWLR (pt.308) 1212; (2006) 7 NWLR (pt.980) 637 and Ndukwe v. The State (supra) at page 82. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
APPEAL: DUTY OF AN APPELLATE COURT
It is trite law that the duty of an appellate court is to look at the judgment of a trial court vide the evaluation of the evidence before it and its findings based on such evidence, to determine whether they are perverse or unsupported by the said evidence and the applicable principles of law. See the case of: John v. State supra. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
EVIDENCE: DUTY OF THE TRIAL COURT
On the duty of the trial court with regard to evaluation of evidence and attitude of an appellate court thereto, the learned Jurist, Rhodes-Vivour, JSC in the case of: Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR (pt. 1256) p.574 at p. 592, paras. C – F, elucidated that:
This court has stated again and again that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial court.
See Akpagbue v. Ogu (1976) 6 SC P.63;
Woluchem v. Gudi (1981) 5 SC P.391;
Ibanga v. Usanga (1982) 5 SC P.103; The trial Judge would have no difficulty in arriving at the correct decision if evidence is properly evaluated.
Consequently, where evidence is properly evaluated i.e to say when all the principles of law relevant are properly considered, an appeal court would be in much difficulty trying to disturb the findings arrived at by the trial Judge.
Such findings cannot be disturbed by an appeal court. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
OGHENERUEMU IBANE Appellant(s)
AND
THE STATE Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Delta State, sitting in Warri, delivered on 28th May, 2008.
The Appellant, Ogheneruemu Ibane was arraigned before the trial Court on a three-count charge of conspiracy to rob and armed robbery contrary to and punishable under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII, Laws of the Federation of Nigeria, 1990. The three counts with their particulars are for easy reference reproduced hereunder as follows:
STATEMENT OF OFFENCE: COUNT I
Conspiracy to rob, contrary to Section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (special provisions) Act, cap. 398, Volume XXII, Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE
Ogheneruemu Ibane (m) on or about the 7th day of June, 2003, at Effurun within Effurun Judicial Division, conspired with others now at large to commit armed robbery.
STATEMENT OF OFFENCE: COUNT II
Armed robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398. volume XXII Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
Ogheneruemu Ibane (m) on the 7th day of June, 2003 at Effurun within Effurun Judicial Division robbed one Stephen Uyoh (m) of assorted GSM handsets, Lines and Rechargeable Cards, which include Nokia 3410, Nokia 3310, Motorolla V70, MTN Lines Econet Lines; total value, five hundred and forty-two thousand Naira (N542,000.00)and at the time of the robbery, you were armed with a gun.
STATEMENT OF OFFENCE: COUNT III
Armed robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (special Provisions) Act, Cap. 398, volume XXII, Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE
Ogheneruemu Ibane (m) on the 7th day of June, 2003 at Effurun Judicial Division robbed one Anthony Nwosu (m) of a wrist-watch, Sagem 930 Hand set; Econet Sim Card and at the time of the robbery, you were armed with a gun.
In proof of the case of the Respondent against the Appellant, three witnesses gave evidence and documents were tendered and admitted in evidence. On the other part, the Appellant gave evidence and called three additional witnesses, in his defence. At the close of the trial, the trial court found that the Respondent proved the case against the Appellant beyond reasonable doubt. Consequently, the Appellant was found guilty on all the three counts and sentenced to death by either hanging or firing squad, at the direction of the Governor of Delta State.
The Appellant was not satisfied with the decision of the trial court convicting and sentencing him to death, hence he filed an appeal against it, to this Court vide an undated original notice and grounds of appeal, which was filed on 30th May, 2008. The original notice and grounds of appeal contained three grounds of appeal. By the order of this court granted on 12th May, 2010, the Appellant on 25th May, 2010, filed an amended notice and grounds of appeal.
There are altogether four grounds of appeal in the amended notice and grounds of appeal. It is pertinent to state here that although the Appellant sought to file additional grounds of appeal which as stated above was granted by this court, the Appellant’s counsel went ahead to file a new notice of appeal, incorporating the three grounds in the original notice, in the new notice of appeal. In essence, the fourth ground contained in the new notice, is the only additional ground subsequently filed.
At the hearing of this appeal by this Court, the learned counsel for the Appellant identified, adopted and relied on the Appellant’s brief of argument dated and filed on 25th May, 2010. He urged this Court to allow the appeal, set aside the judgment of the trial court and quash the conviction and sentence imposed on the Appellant. In the Appellant’s brief of argument, three issues were distilled for determination from the four grounds of appeal. These are stated hereunder as follows:
1. Whether the identification parade as seen from the evidence of the prosecution grounded the conviction of the accused Person?
2. Whether failure of the prosecution to investigate the alibi of the accused person ought not to ground an acquittal?
3. Whether the defence put forward by the accused person was properly considered?
The learned counsel for the Respondent on the other part identified, adopted and relied on the Respondent’s brief of argument dated and filed on 17th Sept., 2010 but deemed properly filed and served on 31st May, 2012. In the Respondent’s brief of argument, three issues were also formulated for the determination of this appeal. The three issues read as follows:
1. Whether the identification parade carried out by the Police was proper and regular in the circumstances of this case?
2. Whether the defence of alibi raised by the Appellant in his defence avail him?
3. Whether the trial court duly and properly considered the defence set up by the Appellant?
I observe that the three respective issues formulated for both parties are akin. I will therefore adopt the issues formulated for the Respondent because they are apt and consider them along with those for the Appellant, seriatim, as I am convinced that the three issues will resolve this appeal. I will however take issues two and three together because they are intertwined.
ISSUE ONE
Whether the identification parade carried out by the police was proper and regular in the circumstances of this case?
The learned counsel for the Appellant restated the definition of identification as, a whole series of facts and circumstances which witness(es) associate(s) an accused person with in the commission of offence(es) charged. This may include evidence of finger print or the recollection of the features of the culprit by a witness who saw him in the act of commission of a crime. He rested his submission on the cases of: (1) Archibong v. State (2006) All FWLR (Pt.323) p. 1747 and (2) Ebiri v. State (2004) All FWLR (pt. 216) p.420, He also referred to the case of: Isibor v. State (2001) All FWLR (Pt. 78) p. 1077 in stating that for an identification to be proper, certain basic considerations must be had. These are:
(a) The description of the accused must be given to the Police shortly after the commission of the offence;
(b) The victim must have had the opportunity to observe the accused and;
(c) The features of the accused noted by the victim must mark the accused out from other persons and
communicated to the Police.
The court before convicting the accused, must ensure that the identification is based on not just the recognition of accused’s facial features but on other peculiarities such as, his general appearance, size, clothing or voice. Such identification ought to be taken in conjunction with other circumstances which point to the accused as the guilty person, to the exclusion of every other reasonable hypothesis. On this submission, he referred to the cases of: (1) Ojukwu v. State (2002) All FWLR (pt. 98) p. 943 and (2) Dosumu v. State (1988) FNWLR p.664. Therefore, the Police must exercise caution and ensure that an identification parade is carried out spontaneously, at a most auspicious moment and earliest opportunity especially where the accused was not apprehended at the scene of crime. Hence, if there is evidence that the victim knew the accused before the commission of the alleged crime, identification parade will totally be unnecessary. In the instant case, according to learned counsel, the Appellant was known to the witnesses fielded by the Respondent.
It was further argued by the learned counsel for the Appellant that the identification parade in this matter was sloppy, tardy, irregular and prearranged by the victim and the police. The victim did not communicate to the Police the features of the Appellant which marked him out from other persons. Merely describing the Appellant as dark complexioned and stoutly built is not enough, because over seventy per centum of men fit into that description. Where there is an irregular identification, there should be other evidence linking the Appellant to the crime, in order to ground a conviction. Otherwise the Appellant must be given the benefit of doubt. In the extra judicial statements of PW1 and PW2, the description of the Appellant and the other alleged robbers was not given. PW2 under oath said that it was the man holding a gun that he could recognize, which man is not the Appellant. In the circumstance, the trial Court ought to have discountenanced the purported identification parade and given the Appellant the benefit of doubt. What is more, there was no other circumstance that pointed to the guilt of the Appellant.
Continuing, the learned counsel for the Appellant stated that before the Appellant was ever arrested, the Police and the complainant had the photograph of the Appellant. The photograph was shown to PW2 and he and the other victims had been schooled before the identification parade, thereby making it easy for the victims especially PW1 to pin-point the Appellant during the identification parade. The PW2 testified that when the photograph of the Appellant was shown to him, he could not categorically identify the Appellant, he merely said that one of the robbers looked like the Appellant. He further posited that another reason he tagged the identification parade irregular is that, the requirement of the law that an accused must be “mixed up” with other people was not strictly adhered to by the Police. That rather than place the Appellant “among” or “within” other persons, they positioned him at the edge of the roll, thereby making it very easy for PW1 to pick him. Learned counsel urged upon this court to hold that the identification parade was irregularly carried out.
Responding under this issue, the learned counsel for the Respondent argued that the identification parade was properly conducted. He referred to the case of: Bozin v. State (1985) 2 NWLR (Pt. 8) p.465 wherein the Supreme Court laid down the proper procedure for conducting identification parade as: the suspected person should be placed with a sufficient number of other persons and have the identifying witness pick out the accused without any assistance. That in the instant case, the Appellant was paraded with seven other persons and PW1 was invited and he went round the parade and placed his hand on the shoulder of the Appellant. Before the parade, the necessary forms, that is, exhibits B, B1 and B2 were filled and signed by the Appellant. He submitted that, in conducting an identification parade, the position of an accused is immaterial. He stated further that the possibility of anybody showing the picture of the Appellant to PW1 before the parade is speculative. For no evidence was adduced in this regard.
Also there is no evidence on the record that anybody including the Police assisted PW1 in identifying the Appellant or that he, that is, PW1 was complying with a demand of his employers in picking the Appellant. He said that there were eight persons including the Appellant in the roll before PW1 was brought out and he identified the Appellant as one of the three persons who robbed him on the day of the incident, while one of them, but not the Appellant, was armed with a gun.
He referred to the case of: Bashaya v. State (1998) 5 NWLR (Pt.550) p.351.
where it was held that, whenever the case of an accused person depends wholly or substantially on the correctness of the identification of an accused, the court should examine closely the circumstances in which the identification was made by each witness, that is:
(a) How long did the witness have the Accused person under observation?
(b) At what distance?
(c) In what light?
(d} Was the observation impeded in anyway?
(e) Did the witness have any special reason for remembering the accused?
(f) How much time elapsed between the original observation and the subsequent identification to the Police?
It was further submitted in favour of the Respondent that, in the instant case, the robbery incident occurred in broad daylight at about 5pm, referring to page 30 line 7 of the record. PW1 said he saw the Appellant without any impediment, that the Appellant entered the store and asked whether he could make a telephone call there, but was told he could not. He left but a few minutes later came back into the store with two others. One of them was armed with a gun and they robbed pw1 of various items of goods including telephone handsets. At the time of the robbery, PW1 said he looked intensely at the Appellant. Hence, the period of interaction between PW1 and the Appellant during the robbery was sufficient for Pw1 to recognize him at the scene of crime and later during an identification parade organised by the Police. Therefore the question of mistaken identity or non-recognition of the Appellant in the commission of the offence would not arise. Therefore, the trial court was perfectly right and in order to rely on the evidence of PW1 as regards the identification of the Appellant as one of the three men that robbed him and PW2.
Reference was made to the Appellant’s statement exhibit A wherein he stated that he did not know Stephen Uyoh, PW1. However, PW1 gave evidence that he had never seen the Appellant before the day of the incident. In view of the fact that the Appellant and PW1 who identified him have never met themselves before the day of the robbery incident, the identification parade was necessary. There was no undue delay in the conduct of the identification parade. The Appellant was not arrested on the day of the robbery incident, but some days thereafter. The identification parade was conducted on the 2nd day of July, 2003, four days after he was arrested and volunteered a statement, that is, 28th June, 2003. Four days cannot be said to be too long a time to conduct an identification parade.
On the extra judicial statements of PW1, PW2 and the Police Investigation Report, Respondent’s learned counsel argued that, these documents were not tendered at the trial and therefore not legal evidence before the trial Court and of course this Court. Reference was made to the cases of: (1) State v. Ogbubunjo (2001)2 NWLR (pt.698) p. 576 at p. 580 and (2) Esangbedo v. state (1989) 4 NWLR (pt. 113) p. 57 to the effect that extra judicial statements which are not tendered and received in evidence cannot be used as evidence in a trial. This is because only evidence properly authenticated either by oral testimony of a party or written statement tendered and admitted during proceedings can be evidence in a trial. He contended that generally a court can convict an accused person on evidence of identification without corroborative evidence and it is only in a case where the statute creating an offence provides that there should be corroboration that is an exception to this legal position. The offence of armed robbery in the instant case does not require corroborative evidence by statute.
As such the trial Court was right to convict the Appellant without corroborative evidence of identification, having satisfied itself of the authenticity of the evidence of identification. It was further submitted that, on the authorities of: (1) Olalekan v. State (2001) 18 NWLR (pt. 746) p. 793 at p. 796 and (2) Ukpabi v. state (2004) 11 NWLR (pt. 884) p. 439, the question of the identification of an accused is an issue of fact for the trial court to make findings on. In the instant case, the identification of the Appellant as one of those who robbed PW1 and PW2 was accepted as a question of fact by the trial court which saw and heard them give evidence that it was the Appellant who robbed them. This court was urged not to interfere with the findings of the trial court which has not been shown to be perverse. On this point, he relied on the case of: Eze v. State (1985) 3 NWLR (Pt. 13) p. 429
I have meticulously considered the submissions of both counsel for the parties vis-a-vis the printed record of appeal on this issue of identification. It is established that, there is a distinction between recognition and identification of an accused person. In the case of: Woru v. State (2011) All FWLR (Pt.602) p. 1644, Nweze JCA, cited with approval the case of: Nwabueze v. State (1988) 4 NWLR (pt. 85) p. 16, where oputa JSC consecrates the difference in the distinction between and the judicial consequences of “recognition” and “identification”. The learned Nweze JCA in paras. D – F at p.1553, recaptured the said distinction as follows:
Recognition of an accused person arises when a person sees a man or woman who is well-known to him committing a crime. The natural reaction here would be to “give the name of such an accused person to the police at the earliest opportunity when he makes his statement to them during Police investigation into the alleged offence”, per oputa JSC in Nwabueze v. State.
On the other hand, the identification of an accused person arises when a person unknown to witnesses commits a crime in their presence. According to Oputa JSC in Nwabueze v. State 257 – 258, the usual reaction of the witness in this instance would be “I saw someone that night for the first time. I can identify him if I see him again”. In such a situation, the identity of the accused person becomes a fact in issue or relevant fact.
In the instant appeal, PW1 was a sales boy in the shop, the scene of the alleged armed robbery. PW2, a customer, was also in the shop at the time of the incident. After the encounter, they both reported the matter to the Police that same day. PW1 gave a statement that day and told the Police that he could recognize two of the three men that attacked him – see pages 20 to 21 of the record. At the trial he gave evidence that he had never seen the Appellant before the day of the incident – see page 30 of the record. This means that recognition was a wrong use of word by him when he lodged the complaint to the Police. For recognition pre-supposes prior knowledge but identification connotes knowledge of an accused person acquired by the witness for the first time on the day of the incident. Hence, PW1 could only mean to say that, he could identify the Appellant if he sees him again. In this situation I agree with the Respondent’s counsel’s submissions that, the identity of the Appellant became a fact in issue or relevant fact. It was therefore not necessary as postulated by the Appellant’s counsel, for PW1 to give the name of his attacker that is, the Appellant when he made his statement to the Police. For how could he have known and given the names of persons he had never seen before the encounter? In this situation and even that of recognition, I agree that the court must always be careful and ensure that a satisfactory explanation is given before accepting such evidence. See the cases of: (1) C.O.P. v. Alao & Ors. (1959 – 60) WRNLR p. 39; (2) Abudu v. State (1985) 1 NWLR (Pt. 1) p. 55 at pgs. 58 & 62; (31 Ani v. State (2009) All FWLR (pt. 4821 p. 1044 and (4) Woru v. State supra at p. 1664, paras. A – B. The learned trial Judge inter alia found in this regard as follows:
Interestingly, it was after the identification parade that the Accused person said he knows PW1 not before. In his statement in Exhibit “A” he said he did not know STEPHEN UYOH i.e PW1……………………………………..
The evidence of the PW1 and PW2, in my view is credible and stands unshaken under cross examination. PW2’s description of the Accused person is apt. He is dark in complexion and fairly stoutly built. He conveniently fits the description as stated by PW2. PW1 on his part, positively identified the accused person………………
Both witnesses did say that the accused person threatened PW1 and it was he who was packing out the mobile phones ………………….PW1 said that he did not know the accused person before the incident. I believe his story….
It is trite law that, it is desirable where necessary to conduct an identification parade, but an identification parade is not a sine qua non to conviction.In the instant appeal, the evidence of PW1 that he saw the robbers and was able to identify the Appellant is borne out of the fact that, just a few moments before the alleged robbery, the Appellant was at the shop to enquire if telephone calls could be made thereat, to which PW1 answered in the negative, but that the Appellant came back to the shop in company with two other men, one of which held a gun. PW1 also testified that he maintained an eye-contact with the Appellant because he was the one who was removing the alleged articles that were on sale in the shop. That although the Appellant threatened to kill him if he did not take away his gaze, he, that is, PW1 never stopped observing the Appellant. It is therefore my view and I hold that the respective evidence of both PW1 and PW2 are undoubtedly corroborative of each other in most material particulars. The accounts of PW1 and PW2 on the scores of the number of the people that robbed them, that is, three men, and the vital issue of who was holding a gun and who was packing wares, were not inconsistent, rather, they tallied. See the cases of: (1) Sowemimo v. State (2012) 2 NWLR (pt. 1284) p. 372; (2) Michael v. State (2008) 13 NWLR (Pt. 1104) p. 361 and (3) Adeja v. State (1979) 6-9 SC p. 18.
Regarding the submissions of the learned counsel for the Appellant that, by placing the Appellant at the edge of the roll or line of seven other persons thereby making it easy for PW1 to identify the Appellant, it is my firm believe that there is no law that specifies the exact position an accused person should be made to occupy, rather, an accused person is expected to be fielded together with other persons. In this case, the Appellant was made to join seven other persons and PW1 picked him out of the lot. As stated above, the learned trial Judge observed that the built of the Appellant matched the description given by the PW2.
I must also agree with the submissions of the learned counsel for the Respondent that there is no evidence in the printed record that, PW1 was either assisted to identify the Appellant or acted the script of anybody at all. This point only came up in the address of the Appellant’s learned counsel. It is settled that submissions or addresses of counsel can never be a substitute of facts adduced, therefore, submissions/addresses outside the purview of facts go to no issue. To put it in other words, the alleged petition written by the boss of PW1 was not an issue before the trial Court, hence all submissions relating thereto are irrelevant and are hereby discountenanced.
From my review above, it is my conviction and I hold that the learned trial Judge was perfectly right to rely on the concrete evidence of identification to convict the Appellant particularly as there were no material contradictions in the Respondent’s case. See the cases of: Emeka v. State (2011) 44 W.R.N p. 174; (2) Oguntola v. State (2007) 12 NWLR (Pt. 1049) p. 617 and (3) Ibrahim v. State (1991) 4 NWLR (Pt. 186) p. 399. What is more, the evidence of PW1 was corroborated by those of PW2 and PW3. I am of the view that the identification parade was properly conducted by the Police, represented by PW3, as a result of the complaint lodged by PW1. On the day of the incident as noted above, PW1 told the Police that he could identify one or two of the alleged armed robbers, especially the Appellant. It then was incumbent on the Police to conduct the identification parade as they did on the fourth day after the Appellant was apprehended. On the above score, I resolve issue one against the Appellant and in favour of the Respondent.
ISSUES TWO & THREE
Whether the defence of alibi raised by the Appellant in his defence avail him?
Whether the trial court duly and properly considered the defence set up by the Appellant?
The learned counsel for the Appellant restated the definition of alibi as, a defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.
The defence of alibi must be raised at the earliest opportunity during investigation, this accords with common sense because a person charged with the commission of an offence when he was somewhere else is expected to raise that fact when he is confronted with the allegation, as this will enable the Police investigate the alibi. It is also required of a person raising the defence to supply the particulars of where he was at the material time. Reference was made to the case of: Nsofor v. State (2003) FWLR (Pt. 153) p.271. It is the duty of the Police where an accused person raises an alibi to investigate that alibi. The mere allegation that he was not at the scene of crime is not enough. The accused person must give some explanations of where he was and who could know of his presence at that other place at the material time of the commission of the offence in question. Once the accused has set forth his alibi it is not his duty to establish by evidence the alibi but for the prosecution to disprove it. Further reference was made on this point to the cases of: (1) Nsofor v. State (supra), (2) Adedeji v. State (1988) 3 NWLR (Pt.85) p. 670; (3) Salami v. State (1988) 3 NWLR (pt. 85) p. 670; (a) Ozoulonye v. State (1981) NCR p. 38; (5) Yano v. State (1965) 1 All NLR p. 193 and (6) Udoebere v. State (2001) FWLR (Pt. 59) p. 1255.
Therefore, if the accused person raises the defence of alibi and it not investigated, this casts a serious doubt on the evidence adduced by the prosecution especially if the accused was not caught in the act of the commission of the offence based on the cases of: (1) Nsofor v. State (supra) (2) Adekunle v. State (1989) 5 NWLR (Pt.123) p. 505 and (3) Onofowokan v. State (185) 2 NWLR (Pt. 23) p. 496.
Furthermore, it was argued in favour of the Appellant that there is no particular form of raising an alibi, an alibi could be suggested or put forward by the accused person. In this regard, reliance was placed on the case of:
Sowemimo v. State (supra). In the first statement made by the Appellant to the Police after his arrest on the 28th June, 2003, he stated he was with his friend Coast at home when the robbery was taking place in a GSM shop. In counsel’s opinion, the above stated fact qualifies as an alibi. The alibi was raised timeously as he raised it at the earliest opportunity, on his arrest. That statement that he was with his friend Coast at home suffices as there is no special form of raising an alibi. It was contended that the Police refused, omitted, neglected and decided for reasons best known to them, not to investigate the alibi. Appellant’s duty stopped at raising and not proving the alibi. Failure of the Police to investigate the alibi raised by the Appellant herein had cast a serious doubt on the evidence adduced by the prosecution since he was not caught in the act of commission of the alleged offence.
It was also contended for the Appellant that the attitude of a court of law in criminal cases is to consider all available legal and equitable defences open to an accused on liberal grounds. This is especially true in cases where the punishment for an alleged offence is a capital one. The cases of: Isibor v. State (supra) and (2) Peter v. State (1994) 5 NWLR (Pt. 342) p. 45 were relied on. Therefore, no matter how stupid, unreasonable, unrealistic and abnormal a defence of an accused person may be, the Police is not only under a legally bounding duty to investigate that defence, the prosecution is under the same duty to put the defence before the court and the court is equally under the same duty to make its findings on same. Failure in this regard will lead to miscarriage of justice, and any order of conviction arising in the circumstance would be quashed on appeal. This contention was rested on the cases of: (1) Moses v. State (supra) and (2) Ebre v. State (2001) 12 NWLR (Pt. 728) p.617. It was reiterated that the Appellant told the Police that he was very familiar with the family of Okotete, the employer of PW1, the sales boy, that this was a business relationship of the sale of second hand telephone sets. However, the Police failed to investigate the said relationship. The evidence of DW2 corroborated the statement of the Appellant in this regard. DW2 said that Ovie Okotete owns the shop where she used to be a sales girl and the Appellant was a regular visitor thereat. Failure or refusal of the prosecution to investigate these facts vitiated the conviction of the Appellant.
Contrariwise, the Respondent’s learned counsel submitted that the defence of alibi did not avail the Appellant. For, the Appellant failed to give the details and particulars of where he was and who he was with at the particular time when the offence was committed. A defence of alibi is only worthy of investigation, if it is precise and specific, in terms of the place the accused person was, the names(s), address(es) of the person(s) he was with and what transpired at the said time and place. In this regard, he relied on the cases of: (1) Ochemaje v. State (2008) All FWLR (Pt. 435) p. 1661 and (2) Udoebre v. State (2001) FWLR (Pt. 59) p. 1255.
According to the learned counsel for the Respondent, the Appellant did not disclose sufficient facts and so his alibi became a non-issue. The burden of establishing the defence on balance of probability lies on the Appellant, as the facts of the alibi and witnesses to be called to establish it are known to him or within his own peculiar knowledge. Since, he did not disclose the facts, the Police could not be expected to go on a wild goose chase, this point was hinged on the case of: Eyisi v. State (2001) 15 NWLR (Pt. 691) p. 555 at p. 563. The Appellant in similar vein ought to have called the persons that he was with, particularly, his alleged friend Coast, to give evidence in court to establish the alleged alibi. The Appellant therefore failed to discharge the evidential burden placed on him during the Police investigation and at trial. On this argument, reliance was placed on the case of: Yanor & Anor v. State (1965) 1 ANLR p. 193. It is however equally established that, it is not every failure of the Police to investigate an alibi raised by an accused person that is fatal to the case of the prosecution. For if the prosecution was still able to adduce sufficient and acceptable evidence to fix the accused person at the scene of crime at the material time, the alibi will become logically and physically demolished. He relied on the cases of: (1) Ochemaje v. State supra; (2) Odu v. State (2000) 7 NWLR (Pt. 654) p. 283 at p. 287 and (3) Bashaya v. State supra at p. 354. That in the instant case, the evidence of prosecution witnesses particularly that of PW1 fixed the Appellant to the scene of crime. PW1 recognised the Appellant at the scene of crime and identified him during the identification parade. The trial Court was therefore right when it discountenanced the Appellant’s so-called defence of alibi. What is more, the trial Court made an overview of the evidence of the Appellant to the Police. The trial Court could not go outside the evidence tendered for the Appellant, as a court of law will not presume the existence of facts not placed before it, this is in line with the decisions in the cases of: (1) Shalla v. State (2004) 8 NWLR (Pt. 875) p. 396 at p. 399 and (2) Ekpeyong v. State (1993) 5 NWLR (Pt. 295) p. 513 at p. 518. Accordingly, the defence of alibi in the instant case hangs in the air and was without any supporting evidence. It is the duty of the Appellant to adduce credible and positive evidence to support his alleged alibi. The trial Court considered the evidence of the prosecution against the evidence of the Appellant and held that the prosecution proved its case beyond reasonable doubt. I have painstakingly given consideration to the submissions of learned counsel on the defence of alibi raised by the Appellant and the alleged closeness of the Appellant to the family of the owner of the shop, the scene of the alleged crime.
Before I delve into the matter of the purported alibi and the other defence of the Appellant in this appeal, I wish to restate the established legal position regarding the mandatoriness of proving the commission of a crime beyond reasonable doubt so as to ground the conviction of a person alleged to have committed the crime. By the provisions of Section 138(1) of the Evidence Act, 1990, applicable at the time of the trial of the Appellant, now Section 138 of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004, in a criminal case, the prosecution is required to prove the allegation of a crime made against an accused person beyond reasonable doubt. In the event of failure of the prosecution to discharge this burden of proof, the accused person must be let off.
See also Section 246 of the Criminal Procedure Act, Cap. C.41, Laws of the Federation of Nigeria, 2004 and the cases of: (1) State v. Okpala (2012) 3 NWLR (pt. 1287) p. 388; (2) Bamaiyi v. A. – G., Federation (2001) 12 NWLR (Pt. 727) p. 468 at p. 497 and (3) Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) p. 411. See also Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria.
In the instant matter, the Appellant was charged with the offence of armed robbery. In the case of: State v. Salawu (2012) All FWLR (Pt. 614) P. 1, at p. 34, paras. G – H and p. 35, paras. A – D, the eminent Adekeye JSC restated the stand of the Apex Court on this legal position. He had the following to say:
It is trite that for the prosecution to succeed in proof of the offence of robbery, there must be proof beyond reasonable doubt of the following essential ingredients:
(1) That there must be robbery or series of robberies.
(2) That the robbery or each robbery was an armed robbery.
(3) That the accused was one of those who took part in the robbery.
I had to go further to explain that proof of a case beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt. The burden of such proof which lies on the prosecution never shifts. If at the conclusion of trial, on the entire evidence the court is left with no doubt that the offence was committed by the accused, that burden is discharged: Bello v. The State (2007) All FWLR (Pt. 396) 702, (2007) 10 NWLR (Pt. 1043) 564; Amina v. State (1990) 6 NWLR (Pt. 155) 125; Nwachukwu v. State (1985) 1 NWLR (Pt.11) 218; Ani v. State (2003) 11 NWLR (Pt. 83) 142; Uwagboe v. State (2007) All FWLR (Pt. 350) 1323, (2007) 6 NWLR (Pt. 103) 1.
The Constitution of the Federal Republic of Nigeria, 1999 of this country as it affects our criminal legal system, Section 36(5) stipulates that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts”.
Also section 138(1) of the Evidence Act provides that:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt”.
Before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the offence charged: Amadi v. The State (1993) 8 NWLR (Pt.314) 644; Alor v. State (1997) 4 NWLR (Pt. 501) 511. See also the case of: John v. State (2012) All FWLR (Pt. 607) p. 639 p. 639.
I have above adverted very exhaustively to the issue of identification as submitted upon by learned counsel for both parties. Further to that, it is important to state that, the identification of the accused person is an essential ingredient of the offence of armed robbery. It must be ascertained that an accused person actually took part in the incident of armed robbery.In this appeal, PW3 said that the Appellant was not apprehended at the scene of the crime. However, PW1 had told the police on the day of the incident that he could identify one of the gang members that attacked him. Hence the conduct of an identification parade by the Police became imperative. Rightly, an identification parade was carried out and PW1 identified the Appellant as one of the three men who robbed both himself and PW2 of various good items. PW1 and PW2 attested to the fact that one of the companions of the Appellant was carrying a gun at the time that they launched the attack and robbed both of them. In the case of State v. Salawu supra at p. 36 paras. C – F, Adekeye JSC went further to say as follows:
Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence.
It is essential in instances where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
(b)The victim or witness was confronted by the offender for a very short time.
(c) The victim due to time and circumstances might not have had the full opportunity of observing the features of the accused: Archibong v. State (2004) 1 NWLR (Pt.855) 488; Ukpabi v. State (2004) All FWLR (Pt.218) 814, (2004) 11 NWLR (Pt. 884) 439.
PW1, one of the victims of the armed robbery in the instant matter testified that he could identify the Appellant during the incident which took place in broad daylight and full view of PW1. The system of identification parade adopted herein was in consonance with normal routine. The Police got PW1 to identify his attacker, that is, the Appellant.
In the last three lines of page 16 of the record, the Appellant in his extra judicial statement to the Police, exhibit A, stated that:
On the 17th of June, 2003 about 5 to 6 pm I was with my friend Coast at home.
It is clear that by his above statement, the Appellant raised the defence of Alibi. On the meaning, purpose and consequences of the defence of alibi, Tsammani, JCA, in the case of: Rasaki v. State (2011) 36 W.R.N. p. 23 at p. 50, lines 10 – 45 and p. 51, lines 5 – 10, elaborately stated the age long and established legal position as follows:
Now, alibi is a complete and radical defence which has the capacity to totally exonerate an accused person from the charge preferred against him. The word alibi is a Latin word which means “elsewhere”. It captures the physical impossibility of a person being in two places at the same time. When it is raised, it means that the accused was elsewhere other than the scene of the crime alleged. It is a defence which is pleaded by a person accused of committing an offence that he was elsewhere at the time the offence was alleged to have been committed, and therefore having regard to the time and place, when and where he was alleged to have committed or participated in the commission of the offence, he could not have been present. Since the facts constituting the alibi raised by an accused are peculiarly within the knowledge of the accused, and such witness that he may provide in support of his plea of alibi, he has the evidential burden to disclose those facts. Such disclosure must be with all necessary details and particulars as to time, place and the persons he was with. The disclosure must be made at the earliest opportunity such as to transfer the burden to the Police to investigate. See Ochemaje V. The State (2008)15 NWLR (pt. 1109) 85, Ndidi v. The State (2005) 44 WRN 153; (2005)17 NWLR (Pt.953)17, Tanko v. State (supra), Afolalu v. The State (2009) 13 WRN 15; (2009) 3 NWLR (pt. 1127) 160 and Ndukwe v. The State (supra). The onus placed on the accused to establish the alibi is not as heavy as that cast on the prosecution to prove his guilt beyond reasonable doubt as required by law. The standard of proof required on the accused to establish his alibi is on the balance of Probabilities.
That being so, once the accused timeously raises the defence of alibi with full particulars on the standard required of him by law, the burden then shifts to the prosecution to investigate in order to verify such claim. In other words, where the defence of alibi is properly and correctly raised as required by law and the prosecution fails to investigate same, the court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. In that circumstance, an essential ingredient of the offence charged would be missing and therefore, it cannot be said that the accused committed or participated in the commission of the offence charged. see Azeez v. The State (2005) 8 NWLR (Pt.927) 312; (2006) All FWLR (pt.337) 485, Aje v. The State (2006) 29 WRN 75; (2006) 5 QCCR 191; (2006) 8 NWLR (pt.982) 345, Dagayya v. The State (2006) 33 WRN 1; (2006) All FWLR (pt.308) 1212; (2006) 7 NWLR (pt.980) 637 and Ndukwe v. The State (supra) at page 82.
I agree with the submissions of Respondent’s learned counsel, indeed the findings of the learned trial Judge and I hold that the Appellant’s plea of alibi was less than feeble as he failed to supply the details of his whereabout at the time of the robbery. The necessary details and particulars as to time, place and the person he was with were not supplied. It is settled that although the onus placed on an accused person, in this case the Appellant, to establish the plea of alibi is on the balance of probabilities, the onus is not as heavy as that placed upon the prosecution to prove his guilt beyond reasonable doubt. Indeed the onus on the accused is not the same as that on the prosecution because in the latter, the onus is static and cannot shift to an accused person. All that the accused needs to do in the event of his plea of alibi, is just to supply the full particulars and details of his whereabout on the day and time of the commission of the crime. Then the burden shifts to the prosecution to investigate in order to verify the claim. Hence, if the prosecution fails to investigate the supplied details, the court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt – see the case of: Rasaki v. State supra. The second limb of the Appellant’s defence is that he had known the owners of the shop at the scene of the alleged robbery, the Okotete family and that he could not think of robbing them, even though he had a brush with them before this incident. In my view, this does not constitute a defence properly so called. In this vein, there was really nothing for the prosecution that is, the Respondent to investigate. It should be noted that apart from in exhibit A where the Appellant fluidly and glibly raised the issue of alibi it is curious that, in his elaborate testimony given at the trial Court, the issue of alibi was not by any chance mentioned or referred to, nay, never again. See pages 54 to 55, 57 to 60 and 62 to 63, of the record of appeal. In my view, the so-called plea of alibi by the Appellant is nothing but a “flimsy excuse”. The learned trial Judge was right to hold at pages 88 to 89 of the record of appeal that:
The defence of the Accused person that he had a problem with the Okotetes before this Incident hold no water. As earlier observed he did not say where he was at the time of the commission of the offence. I find his defence so very feeble.
The evidence proffered by DW1, DW2 & DW3 hold no water in aid of the Accused person. Indeed I find it very watery and bereft of credibility in the circumstances of the case.
The totality is that I find that the prosecution has proved its case against the accused person on all the counts in the charge beyond reasonable doubt.
The learned counsel for the Appellant made such a very heavy weather of the fact that the Appellant ought not to have been convicted solely on the uncorroborated evidence of PW1. I have stated above that in most material details, the evidence of PW2 corroborated that of PW1. And even if it were not so, it is settled law that once the testimony of a sole witness is direct, positive and credible, it needs no corroboration – see the cases of: (1) Rasaki v. State supra; (2) Okosi v. The state (1989) 2 SC (pt. 1) p. 126 at p. 141 and (3) Olayinka v. The State (2007) 2 NSCC P. 505.
The fulcrum and purport of this appeal is that this Court should upturn the judgment of the trial Court. It is trite law that the duty of an appellate court is to look at the judgment of a trial court vide the evaluation of the evidence before it and its findings based on such evidence, to determine whether they are perverse or unsupported by the said evidence and the applicable principles of law. See the case of: John v. State supra. On the duty of the trial court with regard to evaluation of evidence and attitude of an appellate court thereto, the learned Jurist, Rhodes-Vivour, JSC in the case of: Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR (pt. 1256) p.574 at p. 592, paras. C – F, elucidated that:
This court has stated again and again that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial court.
See Akpagbue v. Ogu (1976) 6 SC P.63;
Woluchem v. Gudi (1981) 5 SC P.391;
Ibanga v. Usanga (1982) 5 SC P.103; The trial Judge would have no difficulty in arriving at the correct decision if evidence is properly evaluated.
Consequently, where evidence is properly evaluated i.e to say when all the principles of law relevant are properly considered, an appeal court would be in much difficulty trying to disturb the findings arrived at by the trial Judge.
Such findings cannot be disturbed by an appeal court.
Therefore to succeed in an appeal, an Appellant must show the appellate court that the trial court against whose decision he appealed made errors either in the appraisal of the facts or application of law to the facts to warrant the intervention of the appellate court. See also the cases of: (1) Balogun v. Amubikahun (1989) 3 NWLR (pt. 107) p. 101; (2) Shittu v. Fashawe supra at p. 44, para. D; (3) Wilson v. Oshin (2000) 6 S.C (pt. 111) p. 1 and (4) Ukejiana v. Uchendu 13 WACA p. 43 at p. 46. From the foregoing line of reasoning under this issue, I am of the strong view and I hold that the learned trial Judge in this matter did not make errors either in his evaluation of the evidence adduced before him or application of laws to these facts.
I must also restate herein that, fair hearing within the meaning of section 36(1) of the constitution of the Federal Republic of Nigeria, 1999, means a trial or inquiry or investigation, conducted according to all rules formulated to ensure that justice is done to the parties in an action or matter. It is an indispensable requirement of justice that, an adjudicating authority, to be fair and just, shall hear both sides by giving them ample opportunity to present their cases. see the cases of: (1) Olumesan v. Ogundafa (1996) 2 NWLR (Pt.433) p.628 at pgs. 644 – 645 and (2) Onyekwuluje v. Benue State Govt. (2005) 2 FWLR (Pt.258) p.1067. In the case of Onyekwuluje v. Benue State Govt. Supra at p.1087, paras. B -E. Ogbuagu JCA, (as he then was) had the following to say:
Fair hearing, it is now settled, does not lie on the correctness of the decision handed down by a court or tribunal, but lies entirely in the procedure followed in the determination of the case. When a party who is entitled to be heard, is denied a hearing before a decision affecting him is made, then by virtue of Section 36(1) of the constitution of the Federal Republic of Nigeria, 1999, that decision, cannot bind him. It does not matter whether the same decision would have been reached if he had been heard. Such decision must be set aside in an appropriate action, because in effect, it is null and void. See Prince Adigun & 2 Ors. v. Att.-Gen. of Oyo State & 18 Ors (1987) 3 SCNJ. 118 1 NWLR (Pt.53) 678 and Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt.106) 652; (1989) 4 SCNJ 146 just to mention but a few.
See also the case of: Abubakar Poly v. Maima (2005) 2 FWLR (Pt.258) p.1038.In the instant matter, the learned trial Judge took evidence from the two sides of the divide. He equally gave adequate consideration to all the issues raised by both the Appellant and Respondent. Therefore, the question of fair hearing does not arise at all in the circumstances of this matter and so Section 36(1) of the 1999 Constitution is not applicable in this matter as the provisions of same have not been breached in any wise.
Having found as above, issues two and three are equally resolved against the Appellant and in favour of the Respondent.
In conclusion, I find the decision of the trial Court unimpeachable. I am fully convinced that it had indeed creditably exercised its functions of appraising and ascribing probative value to the evidence presented before it by parties and consequently properly arrived at its conclusion to convict the Appellant as charged. I cannot see any flaw or any grave error committed by it. In my own assessment, the trial Court properly convicted the Appellant, there is no justification for me to interfere or disturb its findings of facts, which I hold as not perverse and there was no miscarriage of justice occasioned to the Appellant.
Consequent upon resolving all the issues against the Appellant, I hold that this appeal is unmeritorious and devoid of substance. It is accordingly dismissed.
The judgment of the trial Court delivered on the 28th day of May, 2008 in charge No. EHO/17C/2004 convicting the Appellant on all the three counts with which he was charged and sentencing him to death are hereby affirmed.
R.C. AGBO, J.C.A.: I agree.
GEORGE OLADEINDE SHOREMI, J.C.A.: I had the privilege of reading in draft the judgment just read by my learned brother Omoleye JCA. I agree with the reasoning and her conclusion that this appeal lacks merit and ought to be dismissed. It is therefore dismissed. The judgment of the lower court is affirmed.
Appearances
For Appellant
AND
For Respondent
