OSARO OSAGIE v. THE STATE
(2019)LCN/13347(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/B/197C/2015
RATIO
ALIBI: WHAT MAKES UP THE DEFENSE OF ALIBI
A defence of Alibi by an accused person is a combined defence of lack of actus reus and mens rea; i.e., that he was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime.
Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi, even though primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See
– GACHI VS. THE STATE (1965) NWLR Pg 333;
– ODIDIKA VS. THE STATE (1977) 2 SC. 21;
– UKWUNNENYI VS. STATE (1989) 4 NWLR (PT. 114) 131 at 144.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
ALIBI: WHAT THE ACCUSED MUST FURTHER PROVE IN CLAIMING THE DEFENSE OF ALIBI
Where an accused person sets up an Alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime at the earliest possible time. See:
– YANOR VS. STATE (1965) 1 ALL NLR. Pg. 193;
– SALAMI VS. STATE (1988) 3 NWLR (PT. 85) 670 at 677.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME 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
Between
OSARO OSAGIE Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Edo State, Benin Division presided over by J.U. Oyomire, J, on an information of three Count Charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. RII Vol. 14, Laws of the Federation of Nigeria, 2004.
In his judgment delivered on the 5th day of February, 2014, the learned trial Judge convicted the Appellant on each of the three Counts and sentenced the Appellant to death. This appeal is predicated on the said judgment.
SUMMARY OF FACTS:
The case as presented by the prosecution at the trial Court was that on the 10th of December, 2011 at about midnight, the Appellant and one other person now at large armed with a gun, broke into the apartment of Mr. Jubilee Odion (PW4) and his wife Angela Odion (PW3) at about midnight and robbed them of the sum of Eleven Thousand Naira (N11,000.00) being PW3?s money, N4,000.00 being PW4?s money. The Appellant was also said to have robbed
1
the victims of two Nokia telephone handsets and a wallet.
PW4 reported the matter to the Police at New Benin the next morning. PW4 was able to recongnise one of the robbers who turned out to be the Appellant as there was light both inside their room and on the corridor. The Appellant was very well known to the PW4 before the incident because they played football together and the Appellant was popularly called ?J.J or Okocha?. PW4 made this known to both his wife PW3 and the Police. He stated this in his statement to the Police as well as in his testimony in Court.
Three days after the robbery incident, PW4 saw the Appellant along the road and with the help of policemen on Patrol, the Appellant was apprehended. One of the phones robbed from PW4 was said to be found on the Appellant, the said Phone was tended in Court during trial as Exhibit C.
In the course of the investigation, the Appellant told the Police that the phone found in his possession was sold to him by one Godwin Ose. The said Godwin Ose was arrested and interrogated by the Police and he denied selling the phone to the Appellant.
The Appellant in his defense denied
2
being a robber and denied robbing PW3 and PW4. He said he was with his mother at the time of the robbery.
In a considered judgment, the learned trial Judge believed the version of the prosecution and disbelieved the version of the Appellant. He then proceeded to convict and sentenced the Appellant to death. Dissatisfied with the judgment, the Appellant appealed to this Court vide a Notice of Appeal filed on the 6th day of February, 2014. (See pages 68 ? 69 of the Records of Appeal)
Learned Counsel for the Appellant, C.O. Ihensekhien Esq. distilled three issues for determination as follows:-
1. Whether from the evidence adduced, the ingredients of armed robbery were proved beyond reasonable doubt to justify the conviction of the Appellant for Armed robbery.
2. Whether there was cogent, convincing and satisfactory evidence of proper identification of the Appellant as one of the armed robbers that committed the offence of armed robbery in the dwelling house of PW3 and PW4.
3. Whether the trial Judge was right in not considering the defense of Alibi raised timeously by the Appellant which the Police investigated by the
3
statement of the mother but refused to tender the said statement in Court.?
Learned Counsel for the Respondent T. Eghe-Abe Esq. adopted the first issue as distilled by counsel for the Appellant according to him it covers the other two issues.
The issues raised by learned counsel for the Appellant can conveniently be compressed into one straight forward issue of narrow compass thus:
Whether on the facts and circumstances of this case, the learned trial Judge was right in rejecting the defence of Alibi put forward by the Appellant and holding that the prosecution proved its case.?
Taking the issues he formulated, learned counsel for the Appellant C.O. Ihensekhien Esq. contended, in summary, that the prosecution failed to lead direct evidence pertaining to this case and relied on the evidence of PW4 and PW3 who are husband and wife respectively. He cited ONWUJUBA VS. OBIENU (1991) 4 NWLR (PT. 183) Pg 16 ? SC.
Counsel referred to the Ruling on Exhibit B and argued that the prosecution failed to link the Appellant to any of the items stolen by the robbers. He posited that since the Appellant denied ownership of
4
Exhibit B, the Nokia Phone said to have been found on him when he was arrested, that also there was Exhibit C (the new phone). Counsel submitted that based on the doubt created over the tendering of Exhibits B and C, that both Exhibits ought to be rejected.
Counsel also made heavy weather concerning the identification of the Appellant which he described as unsatisfactory considering the defence put up by the Appellant that he was a 300 level student of College of Education Ekiadolor and that PW4 incriminated him because he refused to join PW4?s Secret Cult.
He referred to the statement of the Appellant to the police and his oral testimony in Court where the Appellant raised Alibi that he was with his mother at the time the robbery took place. Counsel argued further that the learned trial Judge trivialized the defence of Alibi by merely holding that the defence of Alibi was not proved.
Reacting to the foregoing, learned counsel for the Respondent T. Eghe-Abe Esq. referred to evidence of PW3 and PW4 and contended that the prosecution proved all the ingredients of the offences of Armed Robbery and Conspiracy to commit Armed Robbery against
5
the Appellant beyond reasonable doubt.
Counsel reproduced relevant portions of the testimonies of PW3 and PW4 to drive home the point that elements of the offences were proved beyond reasonable doubt. He cited
– EKE VS. THE STATE (2011) VOL. 200 LRCN PG 149 ? 162;
– EBEINWE VS. THE STATE (2011) VOL. 201, LRCN Pg 224;
On the identity of the Appellant, he posited that PW4 was consistent with the identity of the Appellant which was not in doubt as the one who robbed him considering the fact that they were familiar with each other before the incident.
On the defence of Alibi, counsel submitted that it is on record that the Appellant did not raise any Alibi in his statement to the Police which was admitted as Exhibit A. He described the defence of Alibi raised for the first time by the Appellant in his testimony in Court where he simply stated that he slept with his mother in the same compound as an afterthought.
Let me start with the offence of Conspiracy to Commit Armed Robbery before going into the offence of Armed Robbery proper.
Conspiracy is the meeting of minds of at least two persons to carry out an unlawful purpose
6
or to carry out a lawful purpose in an unlawful manner. There can be no conspiracy unless at least two persons conspire. See IKEMSON VS. THE STATE (1989) 1 CLRN Pg 1.
It is trite that the offence of conspiracy is difficult to prove. This is understandable because it is often contrived in secrecy. Circumstantial evidence is often resorted to in pointing to the fact that the conspirators had agreed on the plan to commit the Crime. There must therefore be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.
In the instant case, the offence of conspiracy can be inferred from the evidence of PW3 and PW4 who were the victims. PW3 in her testimony stated as follows:-
On this day at about 12 midnight we were woken up from sleep by a kick on the door leading to our apartment.
..two men came into the room. They demanded for money. They collected a wallet belonging to my husband and his 2 Nokia Handsets. There was N4,000 inside the wallet. They also collected N7,000 from me.
7
PW3 stated further:
While one remained inside wielding a gun, the other stayed outside.
The one inside threatened me if I do not produce more money but he was told by the one outside to spare me.
The question then is could it be by coincidence that the Appellant and the other man met at the scene of the robbery at the same time, participated in the armed robbery and left at the same time
The only reasonable inference to be drawn is that they were at the scene of crime in pursuance of a common purpose which was to rob PW3 and PW4 of their belongings at gun point.
In SALAMI VS. THE STATE (2015) 2 NWLR (PT. 1444) Pg 595, at 610, the Supreme Court per Kumai Akaahs JSC stated thus:-
In a Charge for an offence which is linked with conspiracy, the actual presence of the accused person where the offence was committed together with prior abetment, means participation in the offence.?
His Lordship went further to state:-
Once the Court arrives at a conclusion that the prosecution has established some community effort by the accused person aimed at committing a crime, it
8
will be safe to convict them of Conspiracy.
Now to the offence of Armed Robbery. In an offence of Armed Robbery, the burden of proof is on the prosecution to prove the following beyond reasonable doubt:
a. That there was robbery or series of Robbery.
b. That the said robbery was an armed robbery.
c. That the Appellant was one of those who took part in the armed robbery.
See ATTAH VS. THE STATE (2010) 10 NWLR (PT. 1201) Pg 190 at 224.
In proof of the ingredients of the offence of armed robbery, PW3 and PW4 who incidentally were both victims of the Armed robbery as well as eye witnesses in their testimonies in Court some of which I already reproduced earlier in this judgment stated categorically the role played by the robbers.
PW4 in his statement to the police stated as follows:-
On 10/02/2011 at about 12 midnight I was inside my room with my wife . I heard a very big noise on my door in the process they saw two of my handsets on top of the table and they collected the two handsets, they also collected my wallet containing the sum of N4,000
9
… from there the robbers demanded for the money, with fear my wife opened a drawer and gave them the sum of N7,000. The money belongs to my wife.
PW4 stated further in the same statement:
.Out of the two robbers the fair complexion young man I recognized hold gun during the operation.
PW4 in his Examination in Chief before the Court stated as follows:-
On 10/2/2011 at about 12 midnight, my apartment at Bello-Osagie was broken into by 2 armed robbers I saw the accused person come into the place. He was armed with a gun.
PW1 and PW2 who investigated the matter gave evidence as to their findings that PW3 and PW4 were robbed and that the robbery was an armed robbery.
In EBEINWE VS. THE STATE (Supra) the Supreme Court held thus:-
It is immaterial in whichever form stealing/theft of anything is executed by an accused person, once the act involved extortion by force or infusing fear of instant death or hurt, it would amount to armed robbery.
The evidence of PW3 and PW4 show that there was
10
threat of violence and actual violence when the Appellant and his cohort while armed with a gun forcefully and violently collected 2 Nokia Phones and money belonging to PW3 and PW4. The testimonies of PW3 and PW4 left no one in doubt that there was robbery on the 10/2/2011 at Bello-Osagie Street Benin City and that the robbery was an armed robbery as clearly testified by PW3 and PW4.
Section 15(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398, Vol. 22 defines ?Firearms? to include any Canon, Gun, Rifle, Carbine, Machine Gun e.t.c. it follows therefore that the Gun mentioned by PW3 and PW4 in their testimonies is a Gun within the meaning of Section 15(1) of the said Firearms Act.
Appellant made heavy weather about inconsistencies in the evidence of the prosecution witnesses. It is trite that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not where there is just a minor discrepancy between them. A mere variation and difference in the use of language is a natural phenomenon and should not count as material contradiction. Individual differences in perception are a
11
factor which should also always be taken into consideration and not disregarded. This is because a prototype or straight ? jacket and repetitive narration should indicate possible tutoring.
There was also attack by learned counsel for the Appellant on the identity of the Appellant. PW4 was very emphatic as to the identity of the Appellant at the earliest opportunity. PW4 in his statement to the police at page 6 of the Record of Appeal stated:-
Meanwhile I left my light on and I was able to see clearly one of the Armed Robbers, immediately I recognized one of the robbers, I quickly lied down, so that the one I recognized would not recognize my face immediately they left I told my wife that I recognized one of the robbers out of the two robbers.
Under Cross Examination, PW4 stated as follows:-
I told the Police at New Benin when I made my initial complaint that one of the persons that robbed me was popularly called J.J Okocha. When I got to know his name as Osaro Osagie, I gave his name as such to the New Benin Police. The accused person and I used to
12
play football together.. I saw the accused person standing outside before I fell down. There was a security light on at the outside where the accused person stood I am emphatic that I saw the face of the accused person before I fell.Exhibit C was the phone stolen from my house and which was recovered by the police from the accused person.?
From the above statement of the PW4 the issue of the identity of the Appellant was laid to rest. They were familiar with each other before the incident. He gave his nickname as J.J Okocha. Moreover, one of the telephones (handset) which was robbed from PW4 and his wife PW3 was recovered from the Appellant the day he was arrested by the police.
Counsel for the Appellant also questioned what he termed failure by the prosecution to investigate the Alibi put up by the Appellant that he was with his mother in their compound at the time of the robbery.
Let me point out that the Appellant did not raise any Alibi in his statement to the Police which was
13
admitted in evidence and marked Exhibit A.
At page 27 line 11 of the record of Appeal the Appellant merely stated:
On 9/2/2011, I slept with my mother in the same compound.
A defence of Alibi by an accused person is a combined defence of lack of ?actus reus? and ?mens rea?; i.e., that he was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime.
Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi, even though primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See
– GACHI VS. THE STATE (1965) NWLR Pg 333;
– ODIDIKA VS. THE STATE (1977) 2 SC. 21;
– UKWUNNENYI VS. STATE (1989) 4 NWLR (PT. 114) 131 at 144.
The evidence led by the prosecution was that the Appellant at about 12 midnight on the 10/2/2011 in company of one other person robbed PW3 and PW4 while armed with a gun. The
14
Prosecution was therefore specific as to the time and date of the commission of the crime. The evidence of the victims, PW3 and PW4 were detailed and direct on these two essential aspects of the case. PW4 also stated that he knew the Appellant before the date of the incident and identified him to the Police on the day he was arrested. Also the Appellant was in possession of one of the telephones robbed from the victims on the day he was arrested. He merely said he bought it from one Godwin Ose who denied selling any handset to the Appellant.
Having led the foregoing evidence fixing the Appellant with the time and date of the crime at the scene, the evidential burden of leading evidence on the Alibi on these points at least sufficient to cast doubt in the mind of the trial Judge was on the Appellant. But in contrast, the Appellant never raised this defence of Alibi in his statement to the Police exhibit A. He raised it for the first time in his testimony in Court.
?Where an accused person sets up an Alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. He must give some explanation of where he was and who could
15
know of his presence at that other place at the material time of the commission of the crime at the earliest possible time. See:
– YANOR VS. STATE (1965) 1 ALL NLR. Pg. 193;
– SALAMI VS. STATE (1988) 3 NWLR (PT. 85) 670 at 677.
The testimony of the Appellant during trial was an afterthought and a childish attempt at raising an Alibi and therefore not sufficient to expect the police to investigate same.
The pertinent questions in this case are:-
1. Was there a robbery?
2. Was the robbery an armed robbery?
3. Was the Appellant one of those who took part in the armed robbery?
In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side he believed. He did so extensively in relation to the counts on the information as well as the defence of Alibi where he found at page 65 lines 18 ? 25 of the Record of Appeal as follows:-
I am not satisfied that the defence of Alibi will avail the accused person in this case. First is the fact that he did not raise
16
the defence at the earliest opportunity to the police preferably in his statement at the stage of investigation. Such a defence raised from the witness box cannot be regarded as a serious defence. At best it is an afterthought. Moreover, there was the evidence of PW4 which positively identified the accused person as one of the armed robbers. The positive evidence of the PW4 outweighs this weak and belated Alibi raised by the accused person.?
On the counts on the information the learned trial Judge found as follows at page 65 lines 9 ? 15:-
In the instant case, there is the uncontradicted and uncontroverted evidence of PW4 that he had known the accused person pretty well prior to the incident as J.J Okocha. There is also the unrebutted evidence of the PW1, PW2 and PW4 that the PW4 told the police at the earliest opportunity that one of the robbers was well known to him as J.J Okocha. The accused person did not deny being known as J.J Okocha. He infact admitted that he and the PW4 were well known to each other prior to the incident. There was no need for an identification parade in the circumstances as one would have been
17
superfluous.
At page 66 lines 6 10 he further held:-
The evidence of the PW1 positively identified the accused person as one of the armed men that robbed the PW3 and PW4 at gun point, in the circumstances, I hold that the prosecution has proved counts 2 and 3 against the accused person beyond reasonable doubt as required by law.
The above is a clear and succinct findings of fact which this Court has no reason or justification to reverse.
In the same manner, the learned trial Judge made impeccable findings on the matter of Conspiracy when after reviewing and evaluating the evidence at page 67 lines 1 – 5 that from the evidence of PW3 and PW4 it can be inferred that the accused person and others acted after agreement to commit armed robbery. That according to the trial Judge constitute the offence of conspiracy.
In the premise, the sole issue is resolved against the Appellant and in favour of the Respondent. This Appeal is unmeritorious and is hereby dismissed.
The judgment of the trial Court in Charge No. B/33C/12 delivered on the 5th day of February, 2014 by J. U. Oyomire, J, sitting at the
18
Benin Division of the Edo State High Court, the conviction and death sentence are hereby affirmed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the advantage of reading before now the judgment of my learned brother, CHIOMA EGONDU NWOSU-IHEME, JCA. just delivered.
I agree that the appeal is devoid of merit and I also dismiss it.
The judgment of the trial Court delivered on the 5th day of February, 2014 by J.U. Oyomire, J. in Charge No. B/33C/12 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, Chioma Egondu Nwosu-Iheme, JCA. I agree that this appeal lacks merit and for the elaborate reasons given by my learned brother, I also dismiss the appeal and affirm the judgment of the lower Court.
19
Appearances:
CHIEF C. O. IHENSEKHIEN appears with him K. O. Omo-Eboh.For Appellant(s)
THERESA EGHE-ABE (Mrs.)For Respondent(s)
Appearances
CHIEF C. O. IHENSEKHIEN appears with him K. O. Omo-Eboh.For Appellant
AND
THERESA EGHE-ABE (Mrs.)For Respondent
