PETER ADEWUMI V. THE STATE
(2012)LCN/5632(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2012
CA/B/76C/07
RATIO
“The term, alibi is not defined in the Evidence Act. It traces its etymological pedigree to the Latin roots ‘alius’ meaning ‘other’ and ‘ ibi’ or ‘ubi’ meaning ‘there’ or ‘where’. Its popular usage in criminal jurisprudence is an ingenious amalgamation of the first three letters in the word ‘alius’ and the last two letters in the word ‘ibi’ or ‘ubi’, Fatai Alani v. The State (1993) 7 NWLR (pt. 303) 112, 124.” PER NWEZE, J.C.A
“In order to sustain a charge of armed robbery the prosecution must prove the following facts beyond reasonable doubt: 1. That there was a robbery or a series of robberies. 2. That each robbery was an armed robbery. 3. That the accused was one of those who took part in the armed robberies.” PER KEKERE-EKUN, J.C.A
“On the issue of contradictions in the evidence of the prosecution witnesses, the law is settled, as submitted by learned counsel for the respondent, that only contradictions in respect of a material fact would make a court doubt the evidence. Where the alleged contradictions are not material to the fact in issue, no explanation is required for them. See: Ikemson V. The State (1989) 3 NWLR (110) 455 @ 474 H. It was also held in that case that what is material will depend on the facts of the particular case. “PER KEKERE-EKUN, J.C.A.
“A successful defence of alibi, therefore, has a direct bearing on an accused person’s responsibility in relation to the alleged offence. It is, therefore, viewed with great importance. This explains Achike JSC’s rationalisation that it is not readily conceded with levity to an accused person seeing that when properly established, it has the far-reaching finality of exculpating him from complete criminal responsibility, Ebre v. State (supra) p. 636 To be entitled to the concession, which a defence of alibi warrants, an accused person is under obligation to comply with the following requirements. (a) He must raise it at the earliest time. In Hasan v. State (2001) 6 NWLR (pt. 709) 286, 305 this requirement was stated thus: It is clear that an accused person wishing to raise the defence of alibi must do so at an earliest opportunity in order to offer the police an opportunity to verify or confirm the facts or otherwise of the defence see, also, Ibrahim v. State (1991) 4 NWLR (pt. 186) 399; Nwabueze v. State (1988) 3 NWLR (pt. 86) 16. (b) Earliest opportunity would preferably be in his extra-judicial statement. Hence, to raise it while testifying at his trial is to deliberately deny the prosecution of its right and duty to investigate the defence. (c) Such a ploy cannot avail the accused person, Ebre v. State (supra) page 636. In Hassan v State (supra), the defence of alibi could not avail the accused person because he raised it during the trial and not during investigation before the actual trial. (d) The defence must be unequivocal as to the particulars of the accused person’s whereabouts, see, per Belgore JSC (as he then was) in Abubakar Ibrahim v. State (1991) 3 LRCN 1010; Onyegbu v. State (1995) 4 SCNJ) 275, 285 286. In Ebre v. State, Achike JSC said at page 636: Where the defence of alibi consists of vague accounts which are simply placed before the court as mere make-belief of pleas of that defence, and which are completely devoid of material facts worthy of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the court would have nothing before it to consider by way of alibi- In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person. (d) Where an accused person discloses this defence at the earliest time without ambiguity, a burden is cast on the prosecution to investigate it, Eyisi v State (2001) 8 WRN 1, The prosecution, in such circumstances, is under obligation to investigate it with a view to either confirming or disproving it, Abubakar Ibrahim v. State (supra) at page 136. (e) An accused person who fails to introduce this defence at the earliest time as shown above invites an onerous burden on himself. The onus is on him to prove the alibi. Belgore JSC (as he then was) in Ibrahim v State (supra) at page 136 explained that: … if at the trial an accused who never raised an alibi when making his statement to the police, on oath in his defence, raised the issue of his not being at the locus criminis at the time the offence he is alleged to have committed took place he raises a new issue entirely from alibi. According to his Lordship, alibi is a defence raised before trial so that the police could investigate it so as to decide on its veracity. Thus, during trial, if an accused person raises a defence of his being elsewhere at the time the offence was committed, he makes an assertion he must prove.”PER NWEZE, J.C.A.
“…where a defence of alibi is raised, the onus is on the prosecution to disprove it. Black’s Law Dictionary, 8th edition defines “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.” It follows from the above definition that the defence of alibi would not be properly raised where the accused person merely says, “I was not there.” It was held in the case of: Ochemaje V. The State (2008) 15 NWLR (1109) 57 @ 90 C & F per Tobi, JSC: “A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time. … It is not the law that the Police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.” See also per Mukhtar, JSC (as he then was) at page 93 D – E (supra): “It is instructive to note that none of the defence witnesses, either the appellant or Didi gave the exact date the appellant visited Allah and returned to his village from Allah. No sufficient particulars to solidify the defence of alibi raised by the appellant were supplied by him. In a situation like this, detailed particulars of the alibi are never too much, for to clarify and sustain the defence, the accused must give specific details. It is after such defence has been properly pleaded that investigation may be warranted.”PER KEKERE-EKUN, J.C.A.
JUSTICES:
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
PETER ADEWUMI – Appellant(s)
AND
THE STATE – Respondent(s)
KUDIRAT M. O. KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): The appellant was arraigned before the High Court of Ondo State sitting at Akure on 23/02/2005 on a one count charge as follows:
“STATEMENT OF OFFENCE
ARMED ROBBERY contrary to and punishable under section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII, Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE
PETER ADEWUMI (M) and others at large on or about the 28th December 2001 at about 4.30pm at Value Tech Company, Ijare in Akure Judicial Division robbed one Jide Amodi the sum of N1000, Osuntuyi Fredrick the sum of N1, 650 and Value Tech company the sums of N40, 000.00 while armed with offensive weapons to wit guns and cutlasses.”
He pleaded NOT GUILTY to the charge. The prosecution called five witnesses and tendered exhibits. The appellant testified on his own behalf and called no other witness. At the conclusion of the trial, the learned trial Judge, in a considered judgment delivered on 4/5/06 found the appellant guilty as charged, He convicted him accordingly and sentenced him to death by hanging.
Being dissatisfied with the decision, the appellant filed a notice of appeal dated 10/5/06 containing four grounds of appeal. With the leave of this court he subsequently filed an amended notice of appeal containing eight grounds of appeal. In compliance with the rules of this court he filed an amended brief of argument dated and filed on 10/10/2011. In reaction thereto the respondent filed a brief of argument dated and filed on 27/3/2012 and deemed properly filed on 28/3/2012.
At the hearing of the appeal on 18/9/2012, CHINONYE OBIAGWU ESQ., adopted and relied on the appellant’s brief. He noted that the respondent did not reply to the submissions in respect of the appellant’s issue 3, which relates to the validity of his arraignment before the lower court. In further adumbration of the arguments in his brief he cited an additional authority: Okolie V. The State (2012) 1 NWLR (1281) 352 @ 378 on the effect of improper arraignment of an accused person. He urged the court to allow the appeal and discharge and acquit the appellant. MRS. A.O. ADEYEMI-TUKI, D.P.P. Ondo State adopted and relied on the respondent’s brief and urged the court to dismiss the appeal.
The appellant formulated the following issues for determination:
1. Whether the findings of the learned trial Judge in respect of the identity of the appellant as one of the robbers was not speculative and based on conjecture and or suspicion, therefore occasioned a miscarriage of justice against the appellant?
2. Whether the failure of the learned trial Judge to avail the appellant of the defence of alibi was not contrary to the totality of the evidence adduced before the trial court, in particular the defence put up by the appellant at the trial?
3. Whether the appellant’s arraignment at the trial court was not improper and consequently nullified the entire trial at the lower court.
4. Whether the prosecution has proved the case of armed robbery beyond reasonable doubt against the appellant?
The respondent adopted the appellant’s issues 1, 2 and 4 as the issues for determination in this appeal. As observed by learned counsel for the appellant, the respondent failed or neglected to address issue 3. I shall determine the appeal on the issues formulated by the appellant. Having regard to the fundamental nature of the arraignment of an accused person whereby failure to comply with the procedure for a valid arraignment would result in the entire trial being rendered a nullity; it would be prudent to commence the determination of the appeal with the appellant’s issue 3.
ISSUE 3
Whether the appellant’s arraignment at the trial court was not improper and consequently nullified the entire trial at the lower court.
Relying on Section 215 of the Criminal Procedure Act (CPA) and Section 36 (6) (a) of the 1999 Constitution learned counsel for the appellant submitted that the arraignment of the appellant was improper on the ground that although the record shows that the charge was read and interpreted to him in Yoruba language before he pleaded thereto, there is nothing in the record to show that the charge was explained to him before his plea was taken. He contended that the omission renders the trial a nullity. He referred to several authorities including Okeke V. The State (2003) 15 NWLR (842) 25. (2003) 2 SC 63 @ 71; Kajubo V. The State (1988) 1 NWLR (73) 721. Kalu V. The State (1998) 13 NWLR (294) 385; Ogunye V. The State (1999) 5 NWLR (604) 548; Okolie v. The State (2012) 1 NWLR (1281) 352 @ 379.
Section 215 of the Criminal Procedure Act provides as follows:
“The person to be tried upon a charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”
Section 36 (6) (a) of the 1999 constitution provides:
“36. (6) Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;”
The learned trial Judge recorded thus at page 10 of the record:
“Charge read and interpreted to the accused in Yoruba language by the Registrar of the court before his plea was taken. Accused pleads not guilty.”
In the above scenario, it is clear that not only was the charge read to the accused person, it was interpreted to him in Yoruba language. The appellant testified in Yoruba language. The charge was therefore interpreted to him in the language he understood. He was represented by counsel when his plea was taken. There was no complaint that he did not understand the charge. Learned counsel did not raise the issue at the trial or in his final address. I am of the view that the case of OKOLIE V. THE STATE (Supra) relied upon by learned counsel for the appellant is not on all fours with the facts of this case. In Okeke V. The State (supra) also relied upon by learned counsel for the appellant, the Supreme Court per Belgore, JSC (as he then was), after considering the requirements for a valid arraignment made the following observation at page 71 of the Supreme Court report:
“In the instant case the charge was read to the accused and he pleaded. His counsel was present and he made a passionate defence to the charge. His defence however was that he took cocaine and he was intoxicated by it. I think the learned counsel for the appellant misapprehended the rationale in the case of Kalu v. The State (1998) 11 – 12 SC 4; (1998) 13 NWLR (58) 531, in which the accused could only speak Ibo language but the proceedings were in English; the language of the court It was held that the proceedings, however well taken, would be nugatory once it was not indicated that there was reading of the charge to him in the language he understood and there was the certainty that he understood the charge.
The accused (now appellant) spoke English throughout the proceedings in the two lower courts where he was represented by various counsel including the one he personally briefed. All the cases relied upon are not on all fours with the situation in this trial.
The accused not only understood the charge against him, he sensibly pleaded “Not guilty”. He never at any time complained against the charge and the arraignment throughout the trial court and at the Court of Appeal.”
Similarly in the case of Ogunye V. The State, (supra), (also found in (1999) 4 SC (Pt. 1) 30 @ 41; and (1999) LPELR-SC.47/1997 @ pages 20 -24), the complaint was that the charge was not read over or explained to the 4th appellant to the satisfaction of the court. In that case, learned counsel for the 4th appellant conceded that the charge was read over and interpreted to his client in Hausa language. His Lordship, Iguh, JSC held that the arraignment of the 4th and 5th appellants was both a judicial and official act, which was carried out in a manner that was substantially regular. In the case of the 5th appellant it was shown that he understood English language and indeed testified in English. His Lordship referred to Section 150 (1) of the Evidence Act 1990 and applied the legal maxim: omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium i.e. it will be presumed that judicial and official acts have been done rightly and regularly until the contrary is proved. His Lordship held thus:
“In as much as I fully subscribe to the view that it is good practice, and indeed desirable that a trial court specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto, my understanding of the authorities is not that unless the court so expressly records, as now urged upon us by learned counsel for the 4th and 5th appellants, such an arraignment automatically becomes invalid and null and void. Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto. I think, however that the test with regard to this requirement is subjective and not objective.”
The complaint in the instant case is that there is nothing in the record to show that the charge was “explained” to the appellant before his plea was taken. I am of the respectful view that the Supreme Court authorities relied upon do not assist the appellant. Rather they support the view that without any evidence to the contrary, it must be presumed that the charge was explained to the appellant to the satisfaction of the court, particularly where the said charge was interpreted to him in Yoruba language. The process of interpreting the charge must of necessity involve some explanation. Neither the appellant nor his counsel complained that he did not understand the charge. This issue is accordingly resolved against the appellant.
ISSUE 1
Whether the findings of the learned trial Judge in respect of the identity of the appellant as one of the robbers was not speculative and based on conjecture and or suspicion, therefore occasioned a miscarriage of justice against the appellant?
In support of this issue learned counsel for the appellant submitted that the findings of the learned trial Judge regarding the identity of the robbers who invaded Value Tech. Company on 28/12/2001 was based on speculation and therefore occasioned a gross miscarriage of justice. He referred to the cases of: Ndidi V. The State (2007) All FWLR (381) 1617 @ 1538; R V. Turnbull (1976) 3 WLR 445 @ 447 and Ikemson V. The State (1989) 6 SC (Pt. V) 114 wherein certain factors were laid down for the guidance of the court when considering evidence of identification, He contended that the identification of the appellant as one of the robbers by PW1 and PW2 was a case of mistaken or “non identity”, He submitted that the learned trial Judge did not apply the guidelines in the cases referred to when evaluating the evidence. He contended that the evidence of PW1 and PW2 on the one hand were in sharp contrast to the evidence of PW3, the I.P.O. on the other. After an examination of the evidence led by these witnesses, learned counsel at page 9 of ‘his brief submitted that the following contradictions emerged:
1. “PW1’s evidence suggests that the Appellant was arrested at the scene of the alleged robbery and taken to the police station on the same date (i.e., 28th December 2001), where she recognised him (Appellant) same day as one of the robbers that invaded the company. Squeezing
2. By the evidence of PW1, the appellant held a cutlass at the time of the alleged robbery attack while PW2 at page 13 of the record said that the appellant held a shot gun.
3. PW2 maintained that the robbers were 3 in number, whereas PW1 said they were 2 boys and in further contradiction said 4 boys were arrested at the scene of the alleged crime among whom she identified/recognised the Appellant.
4. PW3, who was a member of the investigation team said Appellant was arrested on 19/5/2002, which is in tandem with Exhibit A, the statement of the appellant contained at page 8 of the record of appeal.
5. Evidence of PW3 supports the alibi of the Appellant that he had not been at Ijare for the past two years preceding the alleged robbery at Value Tech. Company, hence could not have committed the alleged crime or been seen at the scene of same.”
Learned counsel submitted that there is nothing in the evidence of PW3 to corroborate the evidence of PW1 regarding the identity of the appellant. On the nature of corroborative evidence sufficient to establish the commission of a crime he relied on: Abudu V. The State (1985) 1 NWLR (1) 55 @ 61 C-D. On the effect of contradictions and inconsistencies in a criminal trial he relied on: State V. Danjuma (1997) 5 NWLR (506) 512 @ 528 – 529.
In reply to the above submissions, learned counsel for the respondent submitted that the learned trial Judge carefully considered the identification evidence before him before reaching the conclusion that the appellant was among the armed robbers who invaded the company on the fateful day. He referred to the evidence of PW1 and PW2 at relevant pages of the record and submitted that they were not discredited under cross-examination. He submitted that in addition PW1 made a statement to the Police, which was admitted in evidence as Exhibit A where she gave the name of the appellant as one of the robbers. He pointed out that the witness explained under reexamination that in taking down her statement, the policeman who recorded it wrote Peter Ademujimi instead of Peter Adewumi, the actual name she gave him. He noted that PW2 also testified that she recognised the appellant because they had once lived in the same neighbourhood. He maintained that PW3, the I.P.O. corroborated this testimony by stating that one of the witnesses whose name he couldn’t remember made a statement that she could recognise one of the robbers and that it was based on this statement and other investigation carried out by his team that the appellant was arrested. Learned counsel submitted that the lower court correctly evaluated the evidence before him and came to a correct conclusion.
He submitted that the evaluation of evidence and ascription of probative value thereto is the primary function of a trial court that heard, saw and assessed the witnesses. He submitted that where the court has properly carried out this function it is not for an appellate court to substitute its views for those of the trial court. He relied on: Agbeje V. Ajibola (2002) FWLR (92) 1677 @ 1695 B – D. He submitted that the circumstances in which PW1 and PW2 saw the appellant, the length of time the encounter lasted, the lighting conditions, the opportunity of close observation and previous contact between the parties all contributed to the positive identification of the appellant.
Learned counsel submitted that the contention at page 6 of the appellant’s brief that PW1 and PW2 could not have seen the appellant on the day of the incident because the company was fenced is not borne out by the evidence before the court, as the evidence was that both witnesses were workers in the company. He noted that the evidence before the court was that PW1 was at work at the time of the incident while PW2 who had just given birth resided within the company premises. Learned counsel argued that the alleged contradictions and inconsistencies enumerated by the appellant’s counsel are minor discrepancies and are not material to the determination of the fundamental question as to whether the appellant was one of the robbers. He submitted that minor discrepancies, which did not mislead the defence or occasion a miscarriage of justice, would not warrant a reversal of the judgment appealed against. He referred to: Tanko V. The State (2008) 15 NWLR (1114) 597 @ 540 E – F; Ahmed V. The State (2002) FWLR (90) 135 @ 385 A-B; Archibong V. The State (2004) 1 NWLR (855) 488.
As to whether the appellant carried a gun or cutlass, learned counsel submitted that the material factor is that he was seen armed. He observed that while the incident took place in 2001 the witnesses gave their testimony in 2005. He also submitted that the alleged inconsistency in the number of robbers is also not material, as the evidence showed that there was more than one robber.
In order to sustain a charge of armed robbery the prosecution must prove the following facts beyond reasonable doubt:
1. That there was a robbery or a series of robberies.
2. That each robbery was an armed robbery.
3. That the accused was one of those who took part in the armed robberies.
See:
In the instant case there is no dispute as to the fact that the prosecution established beyond reasonable doubt that a robbery took place on or about the 28th December 2001 at about 4.30pm at Value Tech Company, Ijare in Akure Judicial Division of Ondo State and that it was an armed robbery. PW1 and PW2 testified that they were present when the incident took place, PW1 witnessed the gateman and her husband, a member of staff of the company being killed. PW3 and PW4, the Investigating Police Officers, confirmed that a case of armed robbery was reported at Ijare Police Station and later referred to the Anti-Robbery section of the State C.I.D. PW4 confirmed finding two dead bodies at the scene and that those injured were rushed to hospital. The evidence of these witnesses regarding the fact that there was a robbery and that it was an armed robbery was not discredited under cross-examination. Learned counsel for the appellant conceded in the course of his final address before the lower court that the prosecution had established the first two ingredients of the charge beyond reasonable doubt.
The issue in contention is whether the prosecution proved that the appellant was one of those who took part in the armed robbery or whether the evidence relied upon by the learned trial Judge was based on pure speculation? The evidence of PW1, PW2, PW3 and PW4 is quite germane to this issue and shall therefore be reproduced in some detail: PW1:
“My names are Eunice Olowomeye. I live at No. 18 Odosi Street, Ijare. I work at Value Tech’ Company Ijare. I know the accused person. He is Peter. His name is Peter Adewunmi. I remember the 28th day of December 2001. I was at work. I heard “Ole, Ole, ”(thief, thief) and I ran into the bush. The bush was nearby. I saw Musa. He was the first to be killed on that day. Musa was the gateman of Value Tech. Company, Ijare, After Musa was killed Peter was carrying a cutlass, his mates were carrying guns. My husband was butchered to death with cutlass. When the robbers saw that he did not die, Peter suggested that he should be shot. Where his blood stained still exists till today. Peter was the person I knew to be from Ijare that day. The persons whom Peter instructed heard and they shot him. My husband was a native of Ijare, I was able to identify the accused clearly because he is a native of Ijare. If I see Peter I will be able to recognise him. He is the person standing there, After this incident I made a statement to the Police.
(Note: The statement was admitted in evidence at page 11 of the record and marked Exhibit A. However the actual document is marked A1.)
Cross-Examination:
The name I gave to the Police is the name of the accused Peter Adewumi. It is not true that the name I gave to the Police is Peter Ademijumi…. When I got to the Police station 4 people were arrested but because the accused is a native of Ijare I was able to recognize him. I saw the accused person on the date of the incident. The accused person was one of the persons arrested by the Police. Before the incident I had known the accused person for a long time in Ijare, I also know his father. I know his father’s name. His name is Adewunmi…
Re-Examination:
I wanted to state that the accused’s name is Peter Adewumi. But I was put down as calling his name as Peter Adeniyimi. The statement I made to the Police was written by the Police.”
PW2:
“My names are Elizabeth Otubo. I live at No. 28 Aiyetoro Street, Ijare, I know the accuse person. I remember 28th December 2001. I had a baby then. I heard a noise at about 4pm. I was in my house called Pilgrim House within Value Tech. Company, Ijare. The noise I heard was “shoot him, shoot him,” and I ran out. I saw 3 boys. I know one of the boys. The only one I recognised was Peter Adewumi. Peter Adewumi is the one in the dock. I was able to recognise him because we once lived in the same neighbourhood; Peter Adewumi is a native of Ijare…. Peter held a short gun, Peter was the one who told me to face down, I would therefore not see the others clearly.”
Cross-Examination:
I have been residing in Ijare for about 22 years. I have consistently lived in Aiyetoro, Ijare for the period of about 22 years. The accused person was living at Araraomi, Ijare. He lived in his father’s house at Araromi, Ijare, The accused’s father’s house is a bungalow….
Re-Examination: Nil.
PW3:
“I am No. 133207 Sgt. Adeyoh Ojogbane attached to Anti Robbery Section C.I.D. Akure. I know Sgt. Ahmed Abdul. He is the 1st Investigating Police Officer in this case. When he was going on a course he handed over the case to me for further investigation. In the year 2001, precisely 28/12/2001 there was a robbery in Ijare. I was in Anti Robbery Section then. The case was initially reported at Ijare Police Station then later transferred to Anti Robbery Section State C.I.D. It was initially handled by Sgt, Ahmed Abdul. After some days when Sgt. Abdul handed over the case file to me there, was information linking the accused person to the case by the witness? The team invited Peter Adewunmi to the Station. The accused was cautioned in English Language. Later he volunteered statement in English Language. It was later read over to him in same English Language. He signed and I counter signed. …Based on, the evidence of the witness, the accused was charged to court on a holding charge. If I see Eunice Olowomeye I will recognise her.”
(Note: The statement of the accused was admitted in evidence at page 14 of the record as Exhibit A. However the actual exhibit is Marked A2)
PW4, Sgt. Ahmed Abdu testified as to the investigation he carried out and tendered the statements of some witnesses who were no longer in the employ of the company and unavailable to testify. In the course of his evidence in chief he stated inter alia thus:
“On the day in question the company lost 2 of their staff, available physical cash of the company, the amount of which I cannot remember now and the pickup vehicle of the company which was later recovered.
One of our witnesses whose name I cannot remember now, she is a staff of the company, she made statement that she can identify … of the robbers if seen, Based on the statement of the woman the other investigation team members traced the accused person and get (sic) him arrested.”
In considering the various pieces of evidence reproduced above, the learned trial Judge was guided by the decision in Archibong V. State (2004) 1 NWLR (855) 488 on the circumstances when an identification parade is necessary i.e.
(a) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
(b) Where the victim or witness was confronted by the offender for a very short time; and
(c) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused).
After a review of other relevant authorities on the point (Ebri V. The State (2004) All FWLR (215) 420 @ 437: Ogunlana V. State (1995) 5 NWLR (395) 266 @ 285), His Lordship held thus:
“The witnesses were not discredited by cross-examination on the issue of identity of the accused. Their evidence shows that the 1st and 2nd prosecution witnesses knew the accused person very well before the incident and this is not a case of mistaken identity. See: Igbi V. State (2000) 3 NWLR (548) 169 @ 189. The identity of the accused is not in doubt. The 1st PW has given satisfactory reason for the discrepancy between the name recorded as the surname of the accused and his name disclosed in the information before the court. The evidence of PW1 is corroborated by the evidence of PW3 who said that a woman whose name he could not recollect gave the Police information that led to the arrest of the accused. There was no need for identification parade in the circumstances. I am satisfied that despite the fact that Exhibit A1 was made on 29th March 2002 it sufficiently links the accused with the crime.”
The evidence of PW1 and PW2 was clear and unequivocal as to the fact that they knew the accused person long before the date of the incident. To buttress her evidence, PW2 went as far as describing his father’s house. No effort was made to discredit this aspect of their testimony. I am of the respectful view that having regard to the uncontroverted evidence before the court in this regard, the finding of the learned trial Judge that the accused was positively identified as being at the scene of the crime cannot be faulted. There was no need for an identification parade in the circumstances of this case.
On the issue of contradictions in the evidence of the prosecution witnesses, the law is settled, as submitted by learned counsel for the respondent, that only contradictions in respect of a material fact would make a court doubt the evidence. Where the alleged contradictions are not material to the fact in issue, no explanation is required for them. See: Ikemson V. The State (1989) 3 NWLR (110) 455 @ 474 H. It was also held in that case that what is material will depend on the facts of the particular case. I am inclined to agree with learned counsel for the respondent that the alleged inconsistencies between the evidence of PW1, PW2 and PW3 as to whether there were three or four robbers, whether the appellant was armed with a gun or a cutlass and whether the appellant was arrested on the day of the incident or not are not material contradictions such as to raise any doubt to be resolved in the appellant’s favour. As observed earlier, it is not in dispute that the robbery that occurred on 28th December 2001 was an armed robbery. PW1 personally witnessed her husband and the gateman being killed. PW3 and PW4 confirmed finding two dead bodies at the scene of the incident. Whether there were three or more armed robbers, there was clear evidence from the prosecution witnesses that more than one person carried out the operation. It is also not in dispute that it was evidence obtained from one of the eye-witnesses to the event that led to the arrest of the appellant. This issue is accordingly resolved against the appellant.
ISSUE 2
Whether the failure of the learned trial Judge to avail the appellant of the defence of alibi was not contrary to the totality of the evidence adduced before the trial court, in particular the defence put up by the appellant at the trial?
Learned counsel for the appellant submitted that where an accused person raises the defence of alibi, the onus is on the prosecution to properly investigate and disprove it. He submitted that failure to investigate the alibi is fatal to the prosecution’s case. He relied on several authorities in support of this submission. He referred to the appellant’s statement to the Police dated 19/5/02 (Exhibit A2) wherein he stated thus:
“… I am not an armed robber. I don’t know anything about the robbery at value Tech. supplies and Merchant at Ijare on the 28th of December, 2001. I have never travelled to my village Ijare for the past two years back.”
Relying on the case of: Ukwunnenyi V. The State (1989) 4 NWLR (114) 131, he submitted that the appellant having raised the defence of alibi at the earliest opportunity there was no burden of proof on him. He referred to: R. V. Anthony Hugh Johnson (1962) 46 C.A.R. 45; Aiguoreghian V. The State (2004) 3 NWLR (860) 367 – He noted that although PW3 under cross-examination testified that he and his team went to Ijare and were informed by the appellant’s relatives that the sometimes pays them a visit after 2 months or 3 months,” he admitted that he was not specific on the two-year period. Learned counsel contended that the two-year period during which the robbery took place was crucial to the prosecution’s case and an indispensable aspect of the investigation. He submitted that the learned trial Judge failed to make proper findings on the appellant’s alibi, which led to a miscarriage of justice. He contended that there was no credible evidence before the court that could have rendered the appellant’s alibi a mere charade such as to warrant his conviction and sentence to death. He urged the court to resolve this issue in the appellant’s favour.
In reaction to this issue, learned counsel for the respondent conceded that when the defence of alibi is raised it is the duty of the prosecution to investigate the claim. He however submitted that it is not sufficient for an accused person to raise the defence of alibi without more. He must provide some particulars as to his whereabouts on the day in question. He referred to: Aiguoreghian V. The State (2004) 3 NWLR (860) 367 @ 423 – 424 G – E; Udoebre V. The State (2001) FWLR (59) 1244 @ 1258 G – H. He submitted that in his statement to the Police, although he stated that he had not visited Ijare in the last two years, the appellant failed to state his whereabouts whereas the evidence of PW1 and PW2 clearly fixed him at the scene of crime. He submitted that with their evidence the alibi had been destroyed. He referred to: Ochemaje V. The State (2008) 15 NWLR (1109) 57; Ozaki V. The State (1998) 1 ACLR 27 @ 49.
As submitted by both learned counsel, where a defence of alibi is raised, the onus is on the prosecution to disprove it. Black’s Law Dictionary, 8th edition defines “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.”
It follows from the above definition that the defence of alibi would not be properly raised where the accused person merely says, “I was not there.”
It was held in the case of: Ochemaje V. The State (2008) 15 NWLR (1109) 57 @ 90 C & F per Tobi, JSC:
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time.
… It is not the law that the Police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.”
See also per Mukhtar, JSC (as he then was) at page 93 D – E (supra):
“It is instructive to note that none of the defence witnesses, either the appellant or Didi gave the exact date the appellant visited Allah and returned to his village from Allah. No sufficient particulars to solidify the defence of alibi raised by the appellant were supplied by him. In a situation like this, detailed particulars of the alibi are never too much, for to clarify and sustain the defence, the accused must give specific details. It is after such defence has been properly pleaded that investigation may be warranted.”
In the instant case, as already highlighted, all that the appellant said in his statement to the Police was that he had not visited Ijare for the past two years. He did not state where he was, with whom or what he was doing on the 28th of December 2001. Notwithstanding the feeble defence, PW3 testified that his team visited the appellant’s relatives in Ijare and that they were informed that he visits occasionally after two or three months. PW3 was not cross-examined on this aspect of his evidence. I have considered the review of this evidence by the learned trial Judge at page 51 of the record. I entirely agree with his reasoning and conclusion that in the circumstances of this case the defence of alibi could not avail the appellant. This issue is accordingly resolved against him.
ISSUE 4
Whether the prosecution has proved the case of armed robbery beyond reasonable doubt against the appellant?
In support of this issue, learned counsel for the appellant referred to the ingredients of the offence of armed robbery and submitted that the prosecution failed to establish two out of the three ingredients of the offence, namely, that the robbery was an armed robbery and that the appellant was one of those who participated in the alleged armed robbery. He referred to contradictions already mentioned under issue 1 infra i.e. the alleged discrepancy between the evidence of PW1 and PW2 regarding the weapon the appellant was carrying on the fateful day. He contended that the discrepancy raises a doubt as to whether any weapon was used at all, and ought to be resolved in the appellant’s favour. He submitted further that the prosecution failed to place the appellant at the scene of the crime. He relied on the fact that the name given to the Police by PW1 was different from the appellant’s name and further that while PW1 stated that the appellant was among the persons arrested by the Police on the day of the incident, PW3, the I.P.O. testified that the appellant was arrested on 19/5/2002. He submitted that all these discrepancies were fatal to the prosecution’s case. He also submitted that the evidence of PW3 that the appellant was arrested on the basis of information given to the Police by a woman whose name he could not remember amounted to hearsay. He referred to Sect ion 77 of the Evidence Act.
In reply, learned counsel for the respondent submitted that the evidence of PW1 and PW2 to the effect that the robbery was an armed robbery was corroborated by the evidence of PW4 who testified that on arrival at the scene he and his team met two dead bodies. On the issue of the identity of the appellant as one of the robbers, learned counsel relied on his earlier submission in respect of issue 1.
In the course of resolving issues 1 and 2 in this appeal, I had dealt with all the issues raised by the appellant under this issue 4. There is no doubt from the uncontradicted evidence before the court below that the robbery that occurred on 28th December 2001 at Value Tech. Company, Ijare in Ondo State was an armed robbery. I had also found and held that the defence of alibi relied upon by the appellant could not avail him on two grounds. Firstly that he failed to provide specific particulars of his whereabouts on the day of the incident and secondly that PW1 and PW2 unequivocally placed him at the scene of crime on the fateful day.
I therefore hold that the prosecution established its case against the appellant beyond reasonable doubt. I find no reason to disturb the findings of the lower court.
In conclusion I hold that this appeal lacks merit. It is accordingly dismissed. The Judgment of the High Court of Ondo State, Akure Judicial Division in Charge No. AK/11C/2004 delivered on 4/5/06 convicting the appellant of the offence of armed robbery and sentencing him to death is hereby upheld.
CHIMA CENTUS NWEZE, J.C.A: I had the advantage of reading the draft of the leading judgment just delivered now by my indefatigable learned brother, Kekere- Ekun, JCA. In His Lordship’s characteristic penchant for details, he has, painstakingly, considered all the issues thrown by this appeal.
This contribution addresses only one question that came up at the lower court. As the counsel for the respondent, rightly, argued, it is insufficient for an accused person to raise the defence of alibi without more. He must provide some particulars as to his whereabouts on the day in question.
The term, alibi is not defined in the Evidence Act. It traces its etymological pedigree to the Latin roots ‘alius’ meaning ‘other’ and ‘ ibi’ or ‘ubi’ meaning ‘there’ or ‘where’. Its popular usage in criminal jurisprudence is an ingenious amalgamation of the first three letters in the word ‘alius’ and the last two letters in the word ‘ibi’ or ‘ubi’, Fatai Alani v. The State (1993) 7 NWLR (pt. 303) 112, 124.
As a defence, it seeks to establish that, at all times material to the commission of the offence, the accused person was nowhere near the locus criminis and ordinarily, therefore, he could not be expected to be involved in the physical execution of the offence alleged, Ebre v. State (2001) 12 NWLR (pt. 729) 617, 635.
A successful defence of alibi, therefore, has a direct bearing on an accused person’s responsibility in relation to the alleged offence. It is, therefore, viewed with great importance.
This explains Achike JSC’s rationalisation that it is not readily conceded with levity to an accused person seeing that when properly established, it has the far-reaching finality of exculpating him from complete criminal responsibility, Ebre v. State (supra) p. 636
To be entitled to the concession, which a defence of alibi warrants, an accused person is under obligation to comply with the following requirements.
(a) He must raise it at the earliest time. In Hasan v. State (2001) 6 NWLR (pt. 709) 286, 305 this requirement was stated thus:
It is clear that an accused person wishing to raise the defence of alibi must do so at an earliest opportunity in order to offer the police an opportunity to verify or confirm the facts or otherwise of the defence see, also, Ibrahim v. State (1991) 4 NWLR (pt. 186) 399; Nwabueze v. State (1988) 3 NWLR (pt. 86) 16.
(b) Earliest opportunity would preferably be in his extra-judicial statement. Hence, to raise it while testifying at his trial is to deliberately deny the prosecution of its right and duty to investigate the defence.
(c) Such a ploy cannot avail the accused person, Ebre v. State (supra) page 636. In Hassan v State (supra), the defence of alibi could not avail the accused person because he raised it during the trial and not during investigation before the actual trial.
(d) The defence must be unequivocal as to the particulars of the accused person’s whereabouts, see, per Belgore JSC (as he then was) in Abubakar Ibrahim v. State (1991) 3 LRCN 1010; Onyegbu v. State (1995) 4 SCNJ) 275, 285 286. In Ebre v. State, Achike JSC said at page 636:
Where the defence of alibi consists of vague accounts which are simply placed before the court as mere make-belief of pleas of that defence, and which are completely devoid of material facts worthy of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the court would have nothing before it to consider by way of alibi- In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.
(d) Where an accused person discloses this defence at the earliest time without ambiguity, a burden is cast on the prosecution to investigate it, Eyisi v State (2001) 8 WRN 1, The prosecution, in such circumstances, is under obligation to investigate it with a view to either confirming or disproving it, Abubakar Ibrahim v. State (supra) at page 136.
(e) An accused person who fails to introduce this defence at the earliest time as shown above invites an onerous burden on himself. The onus is on him to prove the alibi. Belgore JSC (as he then was) in Ibrahim v State (supra) at page 136 explained that:
… if at the trial an accused who never raised an alibi when making his statement to the police, on oath in his defence, raised the issue of his not being at the locus criminis at the time the offence he is alleged to have committed took place he raises a new issue entirely from alibi.
According to his Lordship, alibi is a defence raised before trial so that the police could investigate it so as to decide on its veracity. Thus, during trial, if an accused person raises a defence of his being elsewhere at the time the offence was committed, he makes an assertion he must prove.
It is against the background of the above principles that I deride the so-called defence of alibi raised by the accused person. The lower court, rightly, rejected it. It is for these reasons, and the more elaborate reasons offered in the leading judgment, that I too affirm the judgment of the lower court and the verdict sentencing the appellants to death accordingly.
CHINWE EUGENIA IYIZOBA J.C.A: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with her reasoning and conclusions. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal. By way of emphasis I want to comment on two issues: (1) The appellant’s contention that the findings of the trial judge regarding the identity of the robbers was speculative and based on conjecture and suspicion. (2) The appellant’s contention that the failure of the learned trial judge to avail him of the defence of alibi was contrary to the evidence adduced and the defence put up by the appellant at the trial.
In respect of the 1st issue, the learned trial judge had observed in his judgment that the witnesses, PW1 and PW2 gave evidence that they actually saw and recognized the appellant during the robbery and that they knew him well as an indigene of Ijare. There is nothing speculative about this finding. The appellant had the opportunity to cross-examine the witnesses on their claim that they actually saw him during the robbery. For example, the evidence of PW1 was that when she heard the shout “Ole, Ole,” she ran into the bush and that the bush was nearby. This created an opportunity for in-depth cross-examination of PW1 as to where the bush was and her chances of observing what transpired from the bush where she was hiding. No such questions were put to the witness. Indeed her evidence as the trial judge put it was not at all discredited by the cross-examination. Having failed to discredit the direct evidence of these witnesses as to what they actually saw, there is no basis for the claim that the finding of the trial judge as to the identity of the robbers was based on conjecture and suspicion. In ADEYEMI & 3 ORS V. THE STATE (1991) 1 NWLR (PT. 170) 679 @ 694, Olatawura JSC observed:
“It is fallacious to think that the only identification of an accused person acceptable when on issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where o witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence…”
At any rate the law is that the question whether an accused person was properly identified or not is a question of fact for the trial court. Once the evidence of the trial court is shown to have been properly evaluated, the appeal court cannot interfere. See Bassey Akpan Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349 @ 371 G-H: 389 D-E.
On the second issue, the alibi the appellant set up was that he had not travelled to his village Ijare for the past two years. That obviously is not an alibi worthy of investigation. The evidential burden rests on an accused person to raise the defence of alibi as facts peculiarly within his knowledge. See Nwabueze & Ors v. The State (1988) 4 NWLR (Pt. 86) 16 @ 28. The burden is not discharged merely by saying something that would send the Police on a wild goose chase. The alibi must be such as would make it physically impossible for the accused to have committed the offence because he was in some other verifiable place other than at the scene of the crime. The appellant ought to have stated exactly where he was on the day the robbery took place, who he was with, the time and the specific address. It is only where such details are given, that the accused would be deemed to have discharged the evidential burden on him resulting in the shift of the burden to the prosecution.
Notwithstanding the lack of particulars in the alibi set up by the appellant, PW3 testified that they did inquire from the relatives of the appellant and they were told that he visits at intervals of two or three months. The learned trial Judge was right in his conclusion that the defence of alibi set up by the appellant could not avail him.
I agree entirely that there is no merit in this appeal. I also dismiss it and affirm the judgment of the High Court of Ondo State Akure Judicial Division in Charge No. AK/11C/2004
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Appearances
CHINONYE OBIAGWUFor Appellant
AND
MRS. A.O. ADEYEMI-TUKI, D.P.P. Ondo State with MRS. G.A. OLOWOPOROKU, D.D.P.P., MR. R.T. OLUBODUN, D.D.C.L., MR. IFE OLORUNYEMI, A.C.L.O. and MR. ALABA OGUNYEMIFor Respondent
