SAMUEL BELLO v. THE STATE
(2013)LCN/6164(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2013
CA/A/131C/2012
RATIO
ALIBI: PURPOSE OF THE DEFENSE AND WHEN TO BE RAISED
The defence of alibi is set up by an accused person in order to show that he is completely innocent of the offence he is accused of as he was somewhere else and could not have committed it. The law requires that such an accused person, should raise the defence of alibi at the earliest opportunity, to enable the Police to investigate same. Once he does so and has given details of it, then he has done all that he is required to do and the duty to investigate same and rebut it, lies with the prosecution – OZAKI VS. STATE (Supra).PER ABUBAKAR DATTI YAHAYA, J.C.A
EARLIEST OPPORTUNITY: MEANING UNDER THE DEFENSE OF ALIBI
The courts have given an interpretation to what “earliest opportunity” means. In OSUAGWU VS. STATE (2013) 1 SCNJ 33, Rhodes-Vivour JSC in the lead judgment at page 52 held –
“After a suspect is arrested Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of alibi.” (Underlines mine)PER ABUBAKAR DATTI YAHAYA, J.C.A
HOMICIDE: WHAT MUST BE PROVED
It is an important ingredient of the offence of homicide, which the prosecution must prove beyond reasonable doubt, that it was the act or omission of the accused person which caused the death of the deceased, intentionally with knowledge that death or grevious bodily harm was its probable consequence – MBANG VS. STATE (2012) 6 SCNJ 395.PER ABUBAKAR DATTI YAHAYA, J.C.A
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
SAMUEL BELLO Appellant(s)
AND
THE STATE Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court Kogi, holden at Ajaokuta, delivered on the 20th of December, 2011, in which the appellant was convicted for the offence of culpable homicide punishable with death, and sentenced to death by hanging.
The case of the prosecution is that on the 20th day of January 2009, the appellant together with other persons, drove to Achagana Junction at Adogo Village in a Golf Car belonging to the 1st accused person and upon disembarking, began to fire away their guns indiscriminately. The deceased Jimoh Adabara, was hit by a bullet and he died on the spot. The appellant and the other persons on discovering this, ran away.
For his part, the appellant said that he was the driver of the 1st accused person and when they were driving to work, they ran into a group of unruly people extorting money from passersby. They went and reported this to the chief of the village and the police at the police station. It was whilst they were at the police station that information reached them that somebody had been killed.
At the trial, the prosecution called four witnesses and the accused persons, including the appellant herein, each testified and called the DPO of the police station at the time. At the end, they were convicted and sentenced to death. The appellant appealed against the judgment on 14 grounds of appeal. In the appellant’s brief of argument settled by his counsel Abdullahi M. Aliyu and filed on the 4th of May 2012, three Issues were identified for resolution. They are: –
Whether the learned trial Judge was right to hold that the prosecution had established its case against the appellant beyond reasonable doubt?
Whether the approach of the learned trial judge in his evaluation of the evidence adduced at the trial has not occasioned miscarriage of justice?
Whether the failure of the learned trial Judge to read and explain the charges (as amended) to the appellant has not rendered the trial a nullity?
For the respondent, learned counsel Ayo Fashoba, in the Respondent’s brief deemed filed on 11/2/13, identified the issues to be 3 thus: –
Whether a defence of alibi avails the Appellant?
Whether the failure to read and explain the amended charges to the Appellant has occasioned miscarriage of justice?
Whether there are material contradictions and discrepancies in the evidence led by the prosecution as to cast doubt on its case?
The issues identified by the appellant would be the basis for resolving this Appeal.
ISSUE NO. 3
Whether the failure by the learned trial judge to read and explain the charges (as amended) to the appellant has not rendered the trial a nullity?
Learned counsel for the appellant referred to Section 208(1) and (2) of the Criminal Procedure Code, and submitted that it is mandatory for the court to read and explain any amendment or alteration of a charge, to the accused person and then take his plea – YERIMA VS. STATE (2010) 14 NWLR (Pt. 1213) 25 at 44, and that the record must ex facie, show that this has been done – EWE VS. STATE (1992) 6 NWLR (Pt. 246) 147 at 154 and PRINCENT VS. STATE (2002) 18 NWLR (Pt. 798) 49 at 68. Counsel then referred to pages 125 and 160 – 161 of the record, to show that the trial judge had failed to read and explain the amended charges to the appellant. This, he argued, had rendered the entire proceedings a nullity – OKOSUN VS. STATE (1979) NSCC 18 at 25 and YERIMA VS. STATE (Supra) at 46 – 47. He urged us to resolve this Issue in favour of the appellant.
For the respondent, it was submitted that from the record, particularly pages 127, 128, 160 and 161, it is not certain that the amended charges were read and explained to the Appellant. But that since his plea had been taken to the amended charges, he must have understood the new charge and section 208(2) of the Criminal Procedure Code has been complied with, since he was not misled. He referred to section 382 of the Criminal Procedure Code and HUMBE VS. STATE (1974) 6 S.C. 27; (1974) NNLR 44 to submit that the non-compliance with section 208(2) has not occasioned any miscarriage of justice.
Section 208(1) of the Criminal Procedure Code provides –
Any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.
(2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.
The above shows that once a court amends a charge then the new charge has to be read and explained to the accused person and he has to plead to the amended charge.Pages 127 – 128 of the record show that the head of charges were amended, and the appellant who was the 2nd accused said –
“1st Head of charge:
Court to 1st, 2nd and 3rd accused – Are you guilty or not?
………………
2nd Accused – I am not guilty.
2nd Head of charge:
Court to 1st, 2nd and 3rd accused – Are you guilty or not?
………………
2nd Accused – I am not guilty”
There is no recording by the court, that the amended charges had been read and explained to the appellant.
Pages 160 – 161 of the record also show that the 2nd head of charges was amended, and the 2nd accused person, who is the appellant pleaded that –
“It is false. I am not guilty.”
Here again, there is no recording of the fact that the 2nd head of charges was read and explained to the appellant before he pleaded thereto.
It is correct, as submitted by counsel for the appellant, that it is the constitutional right of an accused person to have the charge or an amended charge read and explained to him in the language he understands, before he pleads – EWE VS. STATE (Supra) 157 and EDIDI VS. STATE (2007) 13 NWLR (Pt. 1051) 306. See also section 36(6)(a) of the 1999 Constitution and in AGAGARAGA VS. F.R.N. (2007) 2 NWLR (Pt. 1019) 580, this Court held that where an accused person cannot be said to have been informed of the charges against him and in detail, the nature of the offence to which he is to plead, a proper arraignment could not be said to have been properly carried out and his conviction will not be allowed to stand. See also KUJABO VS. STATE (1988) 1NWLR (pt. 73) 721.
The correct position of the law today is that the failure of a trial judge to state on the record expressly, that the charge or an amended charge had been read and explained to the accused person to the satisfaction of the court before he pleaded, will not automatically, invalidate the trial. This is because there is a presumption of regularity, by section 168(1) of the Evidence Act 2011, of the proceedings and that the trial judge must have been satisfied that the accused understood the charge or the amended charge, before he called upon the accused to plead – OGUNYE VS. STATE (1999) 5 NWLR (Pt. 604) 548 at 567 and EYISI VS. STATE (2000) 15 NWLR (Pt. 691) 555; AMALA VS. STATE (2004) 12 NWLR (Pt. 888) 520 at 561 – 562 and NWACHUKWU VS, STATE (2007) 17 NWLR (Pt. 1062) 31 where the Supreme Court per I.T Muhammed J.S.C held –
“The trite position of the law is that when a charge is read to the accused person and he makes his plea and the court records his plea, and thereafter proceeds to trial, the presumption is that the court is satisfied that the charge was explained to the accused to his satisfaction in compliance with the provision of the Constitution and section 215 CPL……”
In OKEWU VS. F.R.N. (2012) 2 SCNJ 126 at 144, the Supreme Court per Ariwoola JSC held –
“Once an accused person pleads to a charge before the court without objection, it presupposes that he understands the charge preferred and read against him. Otherwise, he would have been ordinarily expected to object and say that he does not understand the technical details of the charge. See OGUNYE VS. THE STATE (1999) 5 FWLR (Pt. 604) 545; ADENIJI VS, THE STATE (2001) 13 NWLR (Pt. 730) 375 …”There is nothing to show that the appellant did not understand the amended charges before he pleaded thereto. He was represented by counsel and it is the duty and the responsibility of counsel to object or draw the attention of the court immediately, to the fact that the appellant did not understand the amended charge. The counsel did not do this and it is too late to raise it at this stage on appeal – MADU VS. STATE (1997) 1 NWLR (Pt. 42) 306 at 402.
I hold therefore, that the appellant understood the amended charge before he pleaded not guilty and the failure by the trial court to categorically state on the record that the amended charge had been read and explained to the appellant, has not affected adversely or rendered the trial a nullity. Issue No. 3 is resolved in favour of the respondent and against the appellant.
ISSUE NO. 1
Whether the learned trial judge was right to hold that the prosecution had established its case against the appellant beyond reasonable doubt.
Here, learned counsel concentrated his energies and submission on alibi. He drew the attention of this court to the fact that the appellant had informed the police at the earliest opportunity that he was at the Police Station with the D.P.O at the time of the incident. He referred to page 135 of the record on the evidence of the I.P.O (PW4), and submitted that once the appellant had given this information to the Police promptly, he had discharged the burden on him on alibi, and it is for the Police to investigate the information given and rebut it at the trial – OZAKI VS. STATE (1990) 1 NWLR (pt. 124) 92 at 109 and STATE VS. AZEEZ (2008) 14 NWLR (Pt.1108) 439 at 503. Learned counsel for the appellant then submitted clearly, that the evidence of the prosecution on alibi is contradictory. He referred to the evidence of PW1 and PW2 who said that they saw the appellant at the scene of crime when the deceased was killed, as opposed to the evidence of PW4 who said he saw the appellant at the Police Station at the time of the incidence. A conflict had therefore arisen which had not been explained by the prosecution and this amounted to a doubt which should have been resolved in favour of the appellant. He placed reliance on EKPOISONG VS. STATE (2009) 1 NWLR (Pt. 1122) 354 at 371 and BOY MUKA VS. STATE (1976) 9 – 10 S.C. 305 to submit that where the evidence of prosecution witnesses are in conflict and contradictory, then the court cannot pick and choose from such contradictory evidence. Counsel then argued that it was wrong for the trial judge to have accepted the evidence of PW1 and PW2 and reject the evidence of PW4, especially as his evidence was not at all anchored on the evidence of DW1. Counsel argued further, that if any evidence is to be believed, it is the evidence of the investigating Police Officer, on alibi, that should have been the measure by which the credibility of other witnesses, such as PW1 and PW2, could be tested – SAKA VS. STATE (2006) ALL FWLR (Pt. 335) 148 at 161 and OZAKI VS. STATE (Supra) at 111.
Learned counsel for the appellant further attacked the reasons given by the trial court in rejecting the evidence of the defence on alibi. He argued that it was not correct, as held by the trial judge, that the appellant did not in his statement to the Police, state that he was with the D.P.O at the Police Station at the time the offence was committed, because PW4 had stated that the appellant had informed him that he was with the D.P.O at the Police Station and this was his first statement. Further, that the fact that the 1st accused person did not mention in his statement – exhibit B2, that the appellant was with him at the Police Station at the time the offence was committed, was only an omission, not a contradiction and should not be used as reason for rejecting the alibi of the appellant.
Regarding the minute in exhibit H where the appellant was referred as an offender, counsel submitted that the name of the appellant is not contained in the said file as an accused and the evidence should therefore not have been rejected. He urged us to resolve the issue in favour of the appellant.
In a response, learned counsel for the respondent submitted on the authority of NDIDI VS. STATE (2005) 17 NWLR (Pt. 953) 17 at 30 and BALOGUN VS. STATE (2002) 6 NWLR (Pt. 763) 512 at 536, that a defence of alibi must be raised timeously and sufficient particulars given to enable the Police to investigate the alibi. Counsel then argued, that the appellant had made a statement (exhibit D) on the 26/1/09, when the offence of homicide was committed on the 20/1/09, but yet he did not raise the alibi in exhibit D when facts were still fresh in his mind. He only attempted to do so in his evidence when it was too late. This was not the appropriate time, he argued. Furthermore, the evidence of PW1 and PW2 had fixed the appellant at the scene of crime and had thus rebutted the defence of alibi raised by the appellant – IDOK VS. STATE (2006) 12 NWLR (Pt. 993) 1 at 31, AZEEZ VS. STATE (2005) 8 NWLR (Pt. 927) 312 at 323 and DAGAYYA VS. STATE (2006) 7 NWLR (Pt. 980) 637. He urged us to resolve the issue in favour of the respondent.
The defence of alibi is set up by an accused person in order to show that he is completely innocent of the offence he is accused of as he was somewhere else and could not have committed it. The law requires that such an accused person, should raise the defence of alibi at the earliest opportunity, to enable the Police to investigate same. Once he does so and has given details of it, then he has done all that he is required to do and the duty to investigate same and rebut it, lies with the prosecution – OZAKI VS. STATE (Supra). The courts have given an interpretation to what “earliest opportunity” means. In OSUAGWU VS. STATE (2013) 1 SCNJ 33, Rhodes-Vivour JSC in the lead judgment at page 52 held –
“After a suspect is arrested Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of alibi.” (Underlines mine)
In the instant appeal, the appellant made a statement on the 29/1/09 when the offence was committed on the 20/1/09. That statement was admitted in evidence as Exhibit D. He did not raise in exhibit D, his statement to the Police, the defence of alibi. Effectively therefore, he did not raise this defence at the earliest opportunity if at all. So on this, the defence of alibi cannot avail the appellant.
If the evidence of PW4 is to be believed, when he gave evidence in court on the 21/9/10, and stated under cross-examination, not in his evidence in-chief, that the appellant had informed him when he was arrested, that he was with the DPO at the Police Station at the time of the commission of the crime, (page 135 of the record), and that the said PW4 had infact seen the “accused at the time the DPO said the accused were with him reporting the crisis at the Police Station” (page 136 of the record), then it means that it was the PW4 that raised the defence of alibi on behalf of the appellant, since the appellant had not himself raised it. The duty is on the accused person (the appellant here), to raise the defence of alibi himself, not someone else to do so on his behalf. It makes matters worse, that it was raised on behalf of the appellant by the Police, the IPO, who had the duty of investigating it, not setting it up!
I now come to the submission of the learned counsel for the appellant on contradictions. It is crystal clear that the prosecution witnesses, had materially contradicted themselves in this issue of alibi. Whereas PW1 and PW2 had unambiguously given evidence that they saw the appellant at the scene of the crime when the accused was killed – pages 114, 117 and 121 of the record – PW4 at page 136, said he saw the accused persons at the Police Station and they were with Mobile Police Men! It looks like PW4 should have been a defence witness, not an investigating police officer! These glaring contradictions had not been reconciled at all and the effect is that all the three prosecution witnesses – PW1, PW2 and PW4 should have their evidence rejected by the court. This is because once the prosecution witnesses contradict themselves in materials particular, the court is not allowed to pick and choose, who to believe and who to reject. They must all be disbelieved and their testimonies rejected by the court – NWOSU VS. STATE (1986) 4 NWLR (Pt. 35) 348 and EKPOISONG VS. STATE (Supra). The trial judge was therefore wrong, to believe the testimonies of PW1 and PW2 and reject that of PW4.
As for DW1, he could not have been a witness of truth because he had contradicted himself seriously. In his statement (exhibit K) made on the 20/2/09, which is his earliest narration of facts, he stated amongst other things that when he went back to the police state with the 1st accused person and was trying to sort things out, he
“got a phone call from the town that they were fighting. I now send Mopol team to patrol to maintain peace. Within that time everybody in my office disappear when my Mopol returned I was told that one person died….”
Then on the 9/3/10, when this same DW1 got information that the Chief Judge was to visit the prison where the accused persons were kept, and when there was the possibility of the Chief Judge discharging some accused persons from the prison, he, most enthusiastically and without any apparent prompting, picked his pen and wrote the Director of Public prosecutions, Kogi State, a letter that contradicted his earlier narration of events, and stated in parts, that
“The youth president (1st accused) and others who came to report were in my office when, we heard a gunshot at achagana ward and one person died. Mobile Policemen drove down and disperse the situation”!!
In his earlier statement he never said he heard a gunshot at achagana ward, and had said everybody had disappeared from his office. But here he is now, saying that the 1st accused and others, were in his office when the deceased was killed! One would also ask. What was the purpose of writing this letter and at that material time? It was, to say the least, a most untidy state of affairs.
Since it is settled that the duty is on an accused person to adduce evidence by calling witnesses to sustain his alibi, the evidence of DW1 being contradictory, cannot be used to sustain the defence of alibi of the appellant. That evidence cannot also, be said to be the defence of alibi raised by the appellant. In the result, this Issue No. 1 is resolved against the appellant.
ISSUE NO 2
Whether the approach of the learned trial judge in his evaluation of the evidence adduced at the trial has not occasioned a miscarriage of justice?
The learned counsel for the appellant submitted that in a criminal trial, the judge is expected to place the evidence adduced by both parties on an imaginary scale and consider whether there is sufficient evidence in proof of all the ingredients of the offence worth believing – EBENEHI VS. STATE (2009) 6 NWLR (Pt. 1138) 431 at 444 – 445. Once the judge is so satisfied, then that is the end of the matter. Counsel argued that the trial judge had failed to do this in this respect, as he considered the evidence adduced by the defence, first, and rejected same, before considering the evidence led by the prosecution and believed same. This was grossly an improper evaluation of evidence which had occassioned miscarriage of justice, he argued – SANUSI VS. AMEYOGUN (1992) 4 NWLR (Pt. 237) 527 at 546 – 547. The appeal should succeed on this point, he argued.
Counsel also submitted that the trial judge had wrongly placed the burden of proving alibi on the appellant, as the appellant was only required to raise the defence of alibi at the earliest opportunity and it is for the police to investigate it – SHEHU VS. STATE (2010) 8 NWLR (Pt. 1195) 112 at 132. Counsel argued that when the trial court placed the burden of adducing evidence in proof of his alibi, it had shifted the burden of proof on to the appellant, a burden that is not on his shoulders, and was a grave and wrong act which has caused miscarriage of justice – OSAZUWA VS. ISIBOR (2004) 3 NWLR (Pt. 859) 16 at 43; ONOBRUCHERE & ANR. VS ESEIGIE & ANR (1986) ALL N.L.R. 289 at 293.
Learned counsel also argued that it was the weakness in the case of the defence that was utilized, to convict the appellant. He referred to the evidence of PW1 and PW2 who said that it was the 2nd accused that shot the deceased. However, PW3 said that these 2 prosecution witnesses had informed him that the situation was confusing and they did not know who actually shot the deceased, and that this means they told lies on oath, had committed perjury and the trial court should not have believed them especially as they are relatives of the deceased and court ought to have cautioned itself which it did not – ONOFOWOKAN V. STATE (1986) 2 NWLR (Pt. 23) 496 at 503.
Learned counsel also submitted that the trial court drew an inference of guilt against the appellant because he ran away from the police station when he heard that somebody had been killed. This was wrong, he submitted, relying on MADUABUCHI GEORGE VS. STATE (1991) 9 NWLR (pt. 214) 199 at 207; UGWUMBA VS. STATE (1993) 5 NWLR (Pt. 296) 660 at 662 and EMIOWE VS. STATE (2000) 1 NWLR (Pt. 641) 408 at 423. He urged us to set aside the conviction of the appellant.
For the respondent, it was submitted that there is no contradiction in the evidence of the prosecution witnesses and even if there are, they are not material, as only material inconsistencies on material points, will avail an accused person -DOGO VS. STATE (2001) 3 NWLR (Pt. 699) 192 at 208 and NDIDI VS. STATE (2005) 17 NWLR (Pt. 953) 17 at 32.
Now, the argument of the learned counsel for the appellant that the law does not place the burden of adducing evidence in defence of alibi, and that the trial judge had wrongly done so, is not quite right considering the current position of the law. For in the recent decision in OSUAGWU VS. STATE (Supra) at page 54, the Supreme Court held –
“It is long settled that it is the duty of the appellant in putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.”
Clearly therefore the trial court was right to have found at page 180 of the record, that the accused person needs to adduce evidence in defence of his alibi.
It is an important ingredient of the offence of homicide, which the prosecution must prove beyond reasonable doubt, that it was the act or omission of the accused person which caused the death of the deceased, intentionally with knowledge that death or grevious bodily harm was its probable consequence – MBANG VS. STATE (2012) 6 SCNJ 395. The evidence in proof must be of such quality that there is no doubt that it is the accused that is responsible. It follows therefore when there are doubts, or when the evidence is materially contradictory, the burden could not be discharged.
PW1 and PW2 as had been shown earlier, had categorically stated that they were present at the scene of crime and that the appellant was present and it was the 2nd accused that shot the deceased. But PW3 contradicted them on this very important ingredient, as he stated at page 132 under cross-examination that –
“The complainant (PW1) said that there was confusion at the time of this incident. The complainant did not tell me the exact place the incident occurred.
The complainant also told me that because they were all armed with guns they did not know the exact person that actually shot the deceased…..”
Further, PW4 also contradicted PW1 and PW2 as he stated that they were not at the scene of crime when it occurred but with DPO at the police station, and that he saw them!
I am in total agreement with counsel for the appellant, that the evidence led by the prosecution is full of material contradictions on an ingredient of the offence as to who was responsible for the act that caused the death of the deceased, and in such a situation, the evidence of the prosecution witnesses has to be rejected in toto. The court is not entitled to pick and choose which prosecution witness to believe and which to reject. See – NWOSU VS. STATE (Supra). The trial court was therefore wrong when it preferred the evidence of PW1 and PW2 to other prosecution witnesses and went on to convict the appellant. It had occasioned miscarriage of justice SAKA VS. STATE (Supra) at 161.
Furthermore, PW1 and PW2 are close relatives of the deceased and the trial court ought to have shown that it had cautioned itself in accepting their testimonies and rejecting the evidence of the police officers – ONOFOWOKAN VS. STATE (Supra).
The evidence of the prosecution witnesses from the record, is therefore riddled with doubt. The benefit of the doubt ought to have been given to the appellant by the trial court – BASHAYA VS. STATE (1998) 4 SCNJ 202 and CHUKWU VS. STATE (1996) 7 NWLR (Pt. 63) 686. There was a miscarriage of justice when the court failed to do so. Issue No. 2 is therefore resolved in favour of the appellant and against the respondent.
The record in this appeal, leaves a sour taste in the mouth, especially regarding the discharge of responsibilities by the police.
In the result, the success of Issue No. 2 which shows that there was miscarriage of justice in the conviction of the appellant as the act of the appellant has not been connected to the death of the deceased, this appeal succeeds and it is allowed. The conviction of the appellant for culpable homicide punishable with death and sentence of death by hanging, in the judgment of the trial Court, Ajaokuta, Kogi State, delivered on 20/12/11 are hereby set aside. The appellant is discharged and acquitted.
MOORE A.A. ADUMEIN, J.C.A: I read before now the judgment of my learned brother, Yahaya, JCA just delivered.
I completely agree that this appeal has merit and I also allow it. Consequently, the judgment of the lower court is hereby set aside.
The appellant is hereby discharged and acquitted.
TINUADE AKOMOLAFE-WILSON, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother, Abubakar Datti Yahaya, JCA. I agree entirely with the reasoning and conclusion contained therein. The appeal is allowed. The conviction of the appellant for culpable homicide with death and the sentence by hanging are set aside. The appellant is discharged and acquitted.
Appearances
Abdullahi M. Aliyu (with K. C. Wisdom)For Appellant
AND
Ayo Fashoba (with Joe Abrahams, R. A. Alfa, H. E Yusuf)For Respondent
