OKEKE v. STATE
(2020)LCN/15444(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/E/179C/2014
RATIO
WORDS AND PHRASES: “ALIBI”
Alibi is a defence by which an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere. However, the mere assertion of the accused that he was elsewhere is not enough, he must give particulars of his whereabouts at the time of the commission of the crime and notice of intention to raise the alibi must be given at the earliest opportunity during the investigation. Furthermore, it does not always follow that once the prosecution failed to investigate the alibi such failure is fatal to the case of the prosecution for even in the absence of such investigation the trial judge has a duty to consider the credibility of the evidence adduced by the prosecution vis a vis the alibi. See OZAKI & ANOR VS THE STATE 1990 ALL NLR 94.It cannot be over-emphasized that an accused raising alibi must furnish adequate particulars of his whereabouts at the time of commission of the offence. He must raise it promptly and properly. Note must be taken however that where the prosecution is able to lead cogent and unassailable evidence which shows that an accused was at the scene of crime at the material time, his defence of alibi will fail. See JIMOH ISHOLA VS THE STATE (1978) 9-10 SC 59, AGBANYI VS STATE (1995) 1 NWLR (PT 369) 1 and BALOGUN VS A.G OGUN STATE (2002) 6 NWLR (PT 763) 512. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
CONFESSIONAL STATEMENT: PRACTICE OF THE COURT WHEN THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT IS IN ISSUE
Once voluntariness of a confessional statement becomes an issue, a trial Judge must of necessity conduct a trial within trial to resolve it before continuing with the trial. See C.O.P VS. ALOZIE (2017) LPELR-41983 (SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
ISSUES FOR DETERMINATION: CONSIDERATIONS TO DETERMINE WHEN PROLIFERATION OF ISSUES ARISES
Proliferation of issues has been deprecated by the appellate Courts repeatedly. Proliferation arises where issues for determination are more than the grounds of appeal. Proliferation defeats the essence of formulation of issues from the grounds of appeal, which is basically to reduce the grounds of appeal into clear and concise forms capturing the substance of the point(s) of controversy in the appeal. The Courts however reserve the right to reframe or reformulate such inelegantly drafted issues to meet the justice of the case. See ADUKU VS ADEJOH (1994) 5 NWLR (PT 349) 582, DUNG VS GYANG (1994) 8 NWLR (PT 362) 315, EDEM VS CANON BALLS LTD & ANOR (2005) 12 NWLR (PT 938) 27, PATNASONIC INDUSTRIES LTD VS. BASSEY (2019) LPELR-46914 (CA) and NCC VS. MOTOPHONE LTD & ANOR (2019) LPELR-47401 (SC). PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
CHINEDU OKEKE APPELANT(S)
And
THE STATE RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, sitting at the Oji River Judicial Division delivered on the 27th March, 2013 by the OKEREKE, J. wherein the Appellant was convicted and sentenced to death for the offence of armed robbery.
The Appellant had been arraigned before the trial Court on a lone count of armed robbery with details on page 21 of the record of appeal thus:
STATEMENT OF OFFENCE
Armed robbery contrary to Section 1(2) (a) (b) of the Robbery and Firearms (Special Provisions) Act 2004.
PARTICULARS OF OFFENCE
Chinedu Okeke on or about the 15th day of October 2004 at Mmamu Bridge, Akpugoeze in Oji River Judicial Division while armed with a double barrel gun robbed the passengers of a commercial vehicle No. XB550AGU of their money and other valuables and during the process killed Joel Oforbuike (deceased) who was the driver of the said commercial vehicle
The Appellant pleaded not guilty to the said charge and thereby put himself to trial. At the trial the prosecution called five witnesses and tendered a number of exhibits while the defence called three witnesses including the accused person, now Appellant. After taking the final addresses of the respective counsel, the learned trial Judge delivered a considered judgment as earlier stated on the 27th March, 2013, wherein the Appellant was found guilty as charged and was consequently given the mandatory capital punishment.
Exercising his right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 12th June, 2013 which was amended via the Amended Notice of Appeal filed on the 15th June, 2020 but deemed properly filed and served on the 23rd June, 2020 containing three grounds.
At the hearing of the appeal, Mr. Orah, the learned lead counsel for the Appellant adopted his Amended Appellant’s brief filed on the 15th June, 2020 but deemed properly filed and served on the 23rd June, 2020 as the arguments of the Appellant in this appeal. For the Respondent, Chief Eze, the Attorney General of Enugu State, adopted the Respondent’s Amended brief filed on the 7th October, 2020 as the arguments of the Respondent in contesting the appeal.
The Appellant formulated a rather proliferated and inelegantly drafted four issues for determination from his three grounds of appeal thus:
(A) Whether the trial Court was right in admitting the two different extra-judicial statements attributed to the Appellant, as exhibits and voluntarily made, not minding the admission of the police witness that the statements were obtained through a question and answer session.
(B) Whether the trial Court was right to have held that the extra-judicial statements of the Appellant were voluntarily made, bearing in mind that the two statements were obtained on two different dates, without flowing freely from the Appellant.
(C) Whether the prosecution in the absence of the extra-judicial statement of the Appellant, involuntarily obtained could be said to have proven the charge of armed robbery against the Appellant beyond reasonable doubt.
(D) Whether the non-evaluation of the defence of alibi as raised by the Appellant in his defence during trial as corroborated by the evidence of the DW2 (his father) and the PW4 who admitted he was timeously informed, does not exonerate the Appellant.
The Respondent on its part formulated three issues for determination without tying them to the grounds of appeal as follows:
a. Whether the prosecution proved the offence of armed robbery against the Appellant.
b. Whether the trial Court was right in also relying on a confessional statement of the Appellant to find him guilty of armed robbery.
c. Whether the defence of alibi availed the Appellant.
Proliferation of issues has been deprecated by the appellate Courts repeatedly. Proliferation arises where issues for determination are more than the grounds of appeal. Proliferation defeats the essence of formulation of issues from the grounds of appeal, which is basically to reduce the grounds of appeal into clear and concise forms capturing the substance of the point(s) of controversy in the appeal. The Courts however reserve the right to reframe or reformulate such inelegantly drafted issues to meet the justice of the case. See ADUKU VS ADEJOH (1994) 5 NWLR (PT 349) 582, DUNG VS GYANG (1994) 8 NWLR (PT 362) 315, EDEM VS CANON BALLS LTD & ANOR (2005) 12 NWLR (PT 938) 27, PATNASONIC INDUSTRIES LTD VS. BASSEY (2019) LPELR-46914 (CA) and NCC VS. MOTOPHONE LTD & ANOR (2019) LPELR-47401 (SC).
It is therefore clear to me that the grounds of appeal could be captured in two issues formulated thus:
1. Whether the trial Court was right to have relied on the extra judicial confessional statements of the Appellant. And
2. Whether the trial Court was right to find the Appellant guilty of armed robbery without considering the defence of alibi raised by him during the trial.
I shall take the said issues seriatim.
It was submitted for the Appellant, after reviewing part of the evidence at the trial within trial, that the prosecution failed to establish that the extra judicial statements were obtained voluntarily and that the said confessions were thereby improperly admitted. Learned counsel referred to SALAWU VS THE STATE (2010) 28 WRN 179-180, NAMSOH VS THE STATE (1993) SCNJ (PT 1) 55 at 67-77 and AUTA VS THE STATE (1975) 9 NSCC 149.
Mr. Orah further submitted that the involuntariness of the said extra judicial confessions was accentuated by the fact that they were made on two different days which according to him would not have been so if they were voluntary.
He contended that the testimonies of the prosecution witnesses at the trial within trial were inconsistent and ought to have been rejected by the trial Court. He referred to MUSA VS THE STATE (2009) 15 NWLR (PT 1165) 467.
The learned Attorney General argued otherwise. He submitted that the confessional statements of the Appellant were only admitted in evidence after the voluntariness thereof had been established in a trial within trial.
He further submitted that the said extra judicial confessions were evaluated and found sufficiently corroborated before being evidential value.
He finally submitted that a free and voluntary confessional statement is relevant and sufficient to ground conviction. He referred to Sections 28 and 29 (1) of the Evidence Act and ADEKOYA VS STATE (2012) 9 NWLR (PT 1306) 539 and AJAYI VS STATE (2014) 14 NWLR (PT 1426) 1.
Pursuant to Section 28 of the Evidence Act (supra), a confession is a statement by a person accused of a crime stating or suggesting the inference that he committed that crime. While Section 29(1) of the said Act permits the use of a confession in evidence against the maker, sub (2) thereof provides the caveat forbidding the admissibility of a confessional statement tainted with any form of oppression. “Oppression” was defined in sub (5) to include torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture. An involuntary confession is therefore inadmissible. See OLAOYE VS. STATE (2018) LPELR-43601(SC).
In the course of trial, the attempt by the prosecution to put the extra judicial confessions of the Appellant in evidence was objected to by the defence on grounds implying that the said statements were involuntarily obtained or that the process leading thereto was tainted with oppressive acts which impeded the voluntariness thereof. The learned trial Judge then appropriately embarked on a trial within trial to determine the circumstances under which the said extra judicial confessions were made. Once voluntariness of a confessional statement becomes an issue, a trial Judge must of necessity conduct a trial within trial to resolve it before continuing with the trial. See C.O.P VS. ALOZIE (2017) LPELR-41983 (SC). At the end of the said trial within trial, the learned trial Judge found that the confessions were voluntary upon which the said statements were admitted in evidence.
The Respondent as prosecution called two witnesses at the trial within trial comprising the investigating police officer who obtained the two statements from the Appellant and the superior police officer who attested and countersigned after ascertaining that they emanated from the Appellant voluntarily. While the testimonies of the two police officers were consistent the same cannot be said for the testimony of the Appellant who was the sole witness for the defence at the trial within trial. The gory scenario he painted in his examination in chief crumbled under the fire of cross-examination. He contradicted himself several times and displayed inconsistencies which justified the rejection of his testimony by the learned trial Judge.
The learned counsel for the Appellant constantly harped on the fact that the two statements were made on two different dates as evidence of involuntariness. I tried, but could not find any logic in the contention. The explanation of the PW2 at the trial within trial that the additional statement was necessitated by later developments in the investigation sounded plausible especially considering the contents of the two statements.
The evaluation later made by the learned trial Judge disclosed abundantly that the contents could only have emanated from the Appellant as they were consistent with other pieces of evidence. The learned trial Judge took the very important step of evaluating the said confessional statements by applying the test of truthfulness to ascertain thus:
1. Whether there is anything outside the confession to show that it is true.
2. Whether it is corroborated.
3. Whether the statement made in it are in fact true as far as they can be tested.
4. Whether the accused had the opportunity of committing the crime.
5. Whether the confession is possible.
6. Whether it is consistent with other facts which have been ascertained and which have been proved. See ALARAPE VS THE STATE (2001) 5 NWLR (PT 705) 79 and OFORDIKE VS. STATE(2019) LPELR-46411(SC).
I hold that the trial Court was right to have made use of the extra judicial confessions of the Appellant, exhibits 2 and 3. I therefore find no merit in the contentions of the Appellant in this regard and I resolve this issue against the Appellant.
The remaining issue is:
Whether the trial Court was right to find the Appellant guilty of armed robbery without considering the defence of alibi raised by him during the trial.
Arguing this issue, Mr. Orah highlighted the essential ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt and referred to ADEBOWALE AJAO VS THE STATE (1984) NSCC 783 and EYO VS STATE (2010) 8 WRN. He submitted that while the prosecution proved that there was indeed a robbery, it failed to link the Appellant with it as the entire evidence led linking the Appellant amounted to mere suspicion which would not amount to proof. He referred to LAWAL VS STATE (2019) 42 WRN 140.
It was further argued that the case of the Respondent was further weakened by the failure to tender the statements made to the police by various witnesses who were interviewed in the course of investigation but that the learned trial Judge failed to allude to this omission.
It was also submitted that the failure to call those who recovered the gun said to have been used in committing the crime, exhibit 5, rendered the testimony of PW5 who tendered it in evidence hearsay and inadmissible. He referred to BUHARI & ANOR VS OBASANJO & ORS (2005) 9 SCM 1 and MUSA KASA VS THE STATE (1994) 6 SCNJ 1.
Finally, learned counsel submitted that the failure of the police to investigate the alibi of the Appellant entitles the Appellant to acquittal. He referred to IBRAHIM VS THE STATE (1991) 5 SCNJ 134, WASARI UMANI VS THE STATE (1988) 2 SC 88 and IDOWU SALAMI VS THE STATE (1988) 7 SC (PT 111) 89.
Contrariwise, Chief Eze, the learned Attorney General of Enugu State after outlining the essential ingredients of the offence of armed robbery, submitted that each of the ingredients was duly established beyond reasonable doubts. He referred to SHUROMO VS STATE (2010) 16 NWLR (PT 1218) 65 and BOZIN VS STATE (1985) 2 NWLR (PT 8) 465.
He further submitted that the Appellant failed to raise his alibi early enough and that in raising it at the trial the said alibi cannot avail him. He referred to IKEMSON VS STATE (1989) 7 NWLR (PT 110) 455, BALOGUN VS A.G. OGUN STATE (2002) LPELR 7261 and NDUKWE VS STATE (2009) 2-3 SC (PT 11) 35.
He concluded by submitting that the evaluation of the trial Court accorded with the justice of the case.
To succeed in a charge of armed robbery, the prosecution has the onus of establishing beyond reasonable doubt that there was a robbery or a series of robberies, that the said robbery or robberies was an armed robbery in the sense that the accused person or one of the robbers was armed and that the accused person was the robber or one of the robbers. See BOZIN VS. STATE (1985) LPELR-799(SC).
Before the trial Court, the Respondent led evidence through PW1, PW2 and PW3 who were eye witnesses and victims of the robbery in issue, to establish that there was indeed a robbery by a lone robber who was armed and who shot and killed their driver Joel Oforbuike in the course of the said robbery early in the morning of 15th October, 2004. PW4 was the first police investigator who was at the scene where with the assistance of local vigilantes they trailed the path of the said armed robber to the residence of the Appellant. PW4 made some recoveries which included a handbag which was identified by the Appellant’s father as belonging to the Appellant thereby linking the Appellant as the possible culprit. PW5 was one on the police investigators who obtained statements from the Appellant when he was eventually brought to the police by his relations after various efforts to apprehend him proved abortive.
On the part of the Appellant, he gave evidence from the witness box as DW1 and denied culpability. He rejected the extra judicial confessions attributed to him saying he was coerced into making them. He stated that he was not in the village when the incident happened as he was with his brother in law in Enugu.
His father was DW2 and while narrating his ordeal with his co-villagers after the robbery incident stated that the Appellant was away in Ebonyi State. DW3 was Appellant’s brother in law who also narrated how he got to know of the incident. He claimed the Appellant was in Ebonyi State by then and narrated what his family went through before the Appellant was eventually taken to the Police by him.
As earlier stated while considering the first issue, the two extra judicial confessions of the Appellant, exhibits 2 and 3 were corroborated by various pieces of evidence already adduced before the trial Court which thereby validated the evidential value given to them by the learned trial Judge.
The issue of alibi was given prominence by the learned counsel for the Appellant. Alibi is a defence by which an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere. However, the mere assertion of the accused that he was elsewhere is not enough, he must give particulars of his whereabouts at the time of the commission of the crime and notice of intention to raise the alibi must be given at the earliest opportunity during the investigation. Furthermore, it does not always follow that once the prosecution failed to investigate the alibi such failure is fatal to the case of the prosecution for even in the absence of such investigation the trial judge has a duty to consider the credibility of the evidence adduced by the prosecution vis a vis the alibi. See OZAKI & ANOR VS THE STATE 1990 ALL NLR 94.It cannot be over-emphasized that an accused raising alibi must furnish adequate particulars of his whereabouts at the time of commission of the offence. He must raise it promptly and properly. Note must be taken however that where the prosecution is able to lead cogent and unassailable evidence which shows that an accused was at the scene of crime at the material time, his defence of alibi will fail. See JIMOH ISHOLA VS THE STATE (1978) 9-10 SC 59, AGBANYI VS STATE (1995) 1 NWLR (PT 369) 1 and BALOGUN VS A.G OGUN STATE (2002) 6 NWLR (PT 763) 512.
The alibi of the Appellant was neither detailed nor credible and more importantly it was not raised timeously to enable any possibility of investigation. To crown it all, exhibit 2 which emanated from the Appellant, fixed him at the scene of crime and gave details of what transpired in a manner that only the perpetrator of the said crime could have given. This in essence made the alibi of the Appellant a non-issue.
The Appellant’s counsel made allusions to the non-tendering of the statements made to the Police by individuals who were not called as witnesses. With due respect to the learned counsel, I do not agree with him that it weakens the case of the prosecution. The first point here is that such statements are not ordinarily admissible except where they satisfy the special conditions stipulated in the Evidence Act (supra). There was no evidence that the makers thereof were dead or that the statements even qualified as dying declarations. For all intents and purposes the makers were alive and could have been subpoenaed by the defence if necessary. The position of the law remains that there is no obligation under the law on the prosecution to call all listed witnesses or present ones not called for cross-examination. All the prosecution need do is to call enough material witnesses in order to prove its case and in doing so it has a discretion in the matter. See SAMUEL ADAJE VS THE STATE (1979) 6-9 SC 14.
I also do not agree with Mr. Orah that the failure to call the vigilante members who handed over exhibit 5, the double barrel gun, to the police investigators, rendered the testimony of PW5 in this regard, hearsay and inadmissible. PW5 gave evidence that was limited to his investigative activities and the law is now well settled that the evidence of an investigator cannot be considered hearsay in any manner for as long as it consists of what he personally gathered in the course of his investigative activities, the veracity of which would be tested under cross-examination. See IKOTUN VS. FRN & ANOR(2017) LPELR-43396 (CA), OBOT VS. STATE (2014) LPELR-23130 (CA), ISAH VS. STATE (2019) LPELR-49363(CA), AROGUNDADE VS. THE STATE (2009) ALL FWLR (PT. 469) (SC) 423 and ANYASODOR VS. STATE (2018) LPELR-43720 (SC).
I therefore resolve this remaining issue as well against the Appellant and in favour of the Respondent.
In totality therefore, I find no merit in this appeal and I therefore dismiss it.
The judgment of the trial Court convicting and sentencing the Appellant is hereby affirmed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Joseph Olubunmi Kayode Oyewole, JCA just delivered. I am in agreement with the decision reached and the reasoning behind the decision.
For the detailed reasons adumbrated In the lead judgment, I too, hold that the appeal lacks merit.
Same is equally dismissed.
Appearances:
Mr. M. Orah, with him, Mr. J. A. Edeh For Appellant(s)
Chief M. E. Eze, Attorney General, Enugu State with him, S. U. Madu Esq. (Chief Legal Officer), Dr. Anayo Edeh (Chief Legal Officer), I. U. Umeobika Esq. (Principal Legal Officer) and U.D. Nebo Esq. (Principal Legal Officer). For Respondent(s)
