SEGUN AKINSUWA v. THE STATE
(2019) LCN/4858(SC)
In The Supreme Court of Nigeria
On Friday, the 10th day of May, 2019
SC.586/2014
RATIO
MEANING OF THE TERM “ALIBI”; POSITION OF THE LAW WHENEVER IT IS RAISED AS A DEFENCE BY AN ACCUSED
… the word or phrase “Alibi” simply means “Elsewhere”. Whenever it is raised as a defense, all that the defendant or appellant is suggesting is that “as at the time the offence he is charged with was committed, he was somewhere and not at the scene of the commission of the offence or wrongful act”. Therefore, whenever it is raised as a defense by an accused/or defendant, it becomes incumbent upon him to adequately furnish detailed information of his whereabouts at the time the offence charged was committed or the conspiracy was perpetrated. It is only when he satisfactorily provides such vital information of his whereabouts, that the police will investigate in order to verify whether he was actually at the place he alleged he was at the time of the commission of the offence and that he was NOT really at the scene of the crime. Where he fails to give or provide such detailed information, the police have no obligation to investigate the claim, as the law does not enjoin them to embark of chase of wild goose. However, if such detailed information was given by the appellant/accused at the earliest time, then the police are duty bound to investigate and if they fail to do so the accused/appellant may be acquitted. See Ajayi v State (2013) ALL FWLR (pt.711)1457 at 1462; Udo Ebre v The State (2001) 6 SCNJ 66, Sowemimo v The State (2004) SCNJ 153, Adio v State(1986)4 NWLR (pt.3)143; Adekunle v State (1989)5 NWLR (pt.123) 505. PER AMIRU SANUSI, J.S.C.
DUTY PLACED ON AN ACCUSED WHO WANTS TO TAKE ADVANTAGE OF THE DEFENCE OF ALIBI
The law is well settled that if an accused person wants to take advantage of the defense of Alibi, he must give detailed particularization of his whereabouts on the date and time of the commission of the crime or wrongful act which will include not only the specific place or places where he was, but also he must make mention of the people he was in company of and what transpired at the house and place, and such information must be unquestionable and must also be capable of being verified when investigated by the police if they had wanted to do so. See Udo Ebre v The State (supra). Also, all these information must be furnished at the earliest stage e.g in his statement to the police so as to give investigators enough chance and time to the police to verify or ascertain. See Gachi vs The State (1995) NMLR 333. I must stress here, that a defense of alibi without providing sufficient facts to call for verification is nebulous and porous and it can not avail the accused person or defendant. But where detailed information of the alibi and sufficient particularization of the whereabouts of the accused are given, it then becomes imperative upon the police to investigate because the law does not put a burden on the accused to prove or establish his alibi. See Okosi v The State (1989)1 SCLRN 29; Yanor V The State (1965)1 All NLR 1 & 3. The burden is always on the prosecution to disprove the defense of alibi where it is duly raised timeously with detailed, clear and unambiguous particularisation. See Ogoala v State (2009)7 ALLR 307. PER AMIRU SANUSI, J.S.C.
WHETHER WHERE THERE IS A NEXUS BETWEEN THE CONTENTS OF A STATEMENT OF A CO-ACCUSED WITH OTHER INDEPENDENT EVIDENCE THE COURT CAN ACT UPON IT IN CONVICTING AN ACCUSED
The law is trite, that where there is a nexus between the contents of a statement of a co-accused with other independent evidence, such corroborative evidence is relevant and admissible and would be regarded to have supported or confirmed the evidence in question and can be acted upon by the trial Court to convict as in this instant case. The bottom line is that a confessional statement so long as it is free direct, positive and voluntary is enough to ground conviction. See R v Omokaro (1941) WACA 146; Kopa v The State (1971) 1 AUNC RISO. PER AMIRU SANUSI, J.S.C.
METHODS BY WHICH THE PROSECUTION MAY ESTABLISH THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF MURDER AGAINST THE ACCUSED
On the offence/charge of murder, it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods. The methods are (a) Through evidence of eye witness or witnesses (b) Through voluntary confessional statement of the accused or accused persons, and (c) Through circumstantial evidenceSee Agboola v The State (2013) LPELR 20652 (SC). Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the underlisted ingredients of the offence of murder, namely:- (1) The death of a human being (2) That the death was caused by the act or commission of the accused person/and (3) That the act of the accused was done intentionally or with Knowledge that death or grievous bodily harm was the probable consequence. See Okeke v The State (1999) 2 NWLR (pt 590) 246 at 273. PER AMIRU SANUSI, J.S.C.
WHETHER THE SUPREME COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF THE LOWER COURTS
It is worthy of note, that in this instant case, there are concurrent findings of two lower Courts which this Court hardly interferes with or disturbs except on special circumstances such as where the findings are perverse or there exists misapplication or misapprehension of substantive or procedural law. None of these viruses exists in this case, hence this Court has no business tampering with the findings of the lower Court in any respect. See Dibiamaka v Osakwe (1989) 3 NWLR (pt 107) 101; Ibuluya v Dikibo, Omotola & Ors vs The State (2009) 8 ALLR 29 at 78. PER AMIRU SANUSI, J.S.C.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
SEGUN AKINSUWA Appellant(s)
AND
THE STATE Respondent(s)
AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): The appellant along with two other co-accused persons were arraigned before the High Court of Justice Ondo State (Coram F. O. Aguda – Taiwo J) (the trial Court) on 26th February, 2007 and tried on two count charge of conspiracy contrary to and punishable under Section 516 of Criminal Code Cap 30, Volume II of the Laws of Ondo State of Nigeria and the offence of murder, contrary to and punishable under Section 319 (1) of Criminal Code, Cap 30, Volume II of Laws of Ondo State of Nigeria.
The particulars of the second count are that the appellant on or about the 5th of June, 2003 at Sejire Campina-Ore, did conspire with the other co-accused to commit felony, to wit, murder. The particulars of the second offence are that the three accused persons (the appellant included) on or about the 5th day of June 2003 at Asejin Campina Ore murdered one Silifatu Rahman. Before the conclusion of the trial, the 3rd accused Ayo Omoduyilemi was released on bail on ill-health ground and he later died. The charges were therefore struck out against him, hence the trial continued with the appellant and his
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other co-accused Omojola Akinlolu.
Initially when the two count/charges were read to the then three accused persons, all of them pleaded not guilty to the two charges when they were read and explained to them in English Language but duly translated to them in Yoruba Language by the Registrar of the trial Court. The trial thereupon commenced in earnest on 26/2/2007. The prosecution, in order to prove the allegations against them, called four witnesses and closed its case. On their part, both the appellant and his co-accused testified for their own defence as Dws 1 & 2 respectively, without calling any witness. It is apt to state here, that the release of the 3rd accused person was sequel to the recommendation for his unconditional release by the Committee on the Administration of Criminal Justice of Ondo State headed by the Chief Justice of Ondo State who is its chairman, due to the ill-health of the 3rd Accused person.
At the end of the trial, the learned trial Judge in a considered Judgment delivered on 7th day of August, 2010 found the appellant guilty of conspiracy and murder and convicted and sentenced him to death.
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Aggrieved by his conviction and sentence by the trial Court, the appellant lodged an appeal to the Court of Appeal, Akure division (the lower Court or Court below) which dismissed his appeal and affirmed the Judgment of the trial Court, vide its Judgment delivered on 7th day of August 2014. Further aggrieved by the Judgment of the lower Court, the appellant appealed to this Court.
Before this Court, the parties, in compliance with the rules and practice applicable in this apex Court, filed and exchanged their briefs of argument.
The appellant’s Brief of argument settled by one Lanre Oliyide was filed on 20/10/2015 and was adopted and relied on, when the appeal was argued before us on 21/2/2019. In the said Brief of argument, three issues were decoded for the determination of the appeal as set out hereunder: –
1. Whether the learned Justices of the Court of Appeal were right and applied the correct principle of law when they dismissed and or discountenanced the defence of Alibi promptly raised by the Appellant herein. (Distilled from Ground 1 of the Notice of Appeal)
2. Whether the learned Justices of the Court of Appeal were right and applied the correct
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principle of law acting and relying on alleged confessional statement of co-accused (Dw1 and Dw3) respectively as corroborative evidence to sustain the conviction and sentence of death imposed on the Appellant (Distilled from Ground 2 of the Notice of Appeal)
3. Whether the learned Justices of the Court of Appeal were right and came to the right conclusion when they held that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt in the absence of proof of essential ingredients of the offences of conspiracy and murder by the prosecution against the appellant (Distilled from Ground 3 of the Notice of Appeal).
The learned counsel for the respondent herein, followed suit by also filing his brief of argument on behalf of the respondent on 26/10/2017 which was deemed filed on 11/4/2018. In the said brief of argument, four issues were nominated for the determination of the appeal which I shall set out below:-
A- Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt at the trial Court (Ground 3).
B- Whether the learned Justices of the
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Court of Appeal were right when they discountenanced the defence of Alibi raised by the Appellant (Ground 1)
C- Whether the learned Justices of the Court of Appeal were right in holding that the trial Court rightly relied on Exhibits 5, 6 and 7 and expunged Exhibit 10 in view of its inadmissibility (Ground 2) Whether the learned Justices of the Court of Appeal were right in holding that the refusal of the trial Court to wait indefinitely for the Appellant’s address before delivering its Judgment did not amount to lack of fair hearing and miscarriage of Justice (Ground 4).
It would seem to me that Issue 1 in the appellant’s brief is similar to Issue B in the Respondent’s brief of argument. Also Issue 1 in the appellant’s brief is similar to Issue B in the Respondent’s brief while Issue 2 in the appellant’s brief tallies with Issue C in the Respondent’s Brief of argument. They merely differ in the wordings used in couching them. I shall therefore treat this appeal on the guidance of the issues raised in the appellant’s brief of Argument.
SUBMISSIONS ON ISSUES FOR DETERMINATION
Issue no 1 deals with whether the lower Court was right in
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rejecting the defence of Alibi raised by the appellant.
The learned counsel for the appellant argued that the trial Court and lower Court misdirected themselves by erroneously placing evidence bordering on disproving Alibi on the appellant, instead of the prosecution. He argued that the Appellant herein, at the earliest opportunity raised the defence of alibi in his extra Judicial statement to the police dated 6/6/03 which was admitted in evidence along with other documents as Exhibits 10 and 10A and frontloaded as part of proof of evidence. He referred to the concurrent findings of the two lower Courts to the effect that although the appellant had timeously raised the defence of alibi, but he did not furnish police with adequate particulars of his whereabouts so as to give room for making full investigation. He argued that this conclusion is grossly erroneous and is at variance with the totality of the evidence before the trial Court. He referred to the statement of the appellant dated 6/6/03 i.e. Exhibit 10 at pages 30-31, 62-63 lines 23-24 of the record where he gave particulars and information as to his whereabouts on the 5th day of June, 2003. He
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argued further, that the appellant in that statement stated that he was in OMITUNTUN VILLAGE on the day of the incident with his brother’s wife who put to bed and also with Marna, Juliana, Talabiya Monisola and some of his father’s friends who came to rejoice with the family on the celebration of the newly born baby. He urged the Court to hold that the concurrent findings of the two lower Courts that the defence of alibi raised by the appellant is devoid of necessary particulars.
Issue No 2 deals with whether the lower Court was right in applying the correct principle of law acting and relying on alleged confessional statements of co-accused persons, namely (Dw1 and Dw3).
He argued that the finding of the trial Court and its endorsement by the lower Court clearly shows that the conviction of the appellant was predicated absolutely on the alleged confessional statement attributed to the appellant as allegedly corroborated by the evidence of Dw1 and Dw2 i.e. the 2nd and the 3rd defendants at the trial Court. He therefore submitted that if Exhibits 5, 6, & 7 which are purported confessional statements of the accused persons i.e. the 1st 2nd and 3rd
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accused persons are discountenanced for and having not satisfied the legal requirement of confessional statement, the whole case of the prosecution will collapse. He argued further, that Exhibits 6 and 7 relied upon by the trial Court are mere statements of co-accused persons charged along with the appellant
He submitted that an extra Judicial statement of a co-accused can not be used in law, to convict another accused person charged with the same offence. He urged this Court to resolve this issue in favour of the appellant.
With regard to Issue no 3, it deals with whether the lower Court was right when it held that the prosecution had proved its case beyond reasonable doubt.
The learned appellant’s counsel argued that the prosecution has not been able to establish that the appellant caused the death of the deceased. He submitted that the prosecution, having failed to prove this essential ingredients of the offence has therefore failed to prove its case beyond reasonable. He urged the Court to resolve this issue in favour of the appellant.
Issue no 4 deals with whether the lower Court was right when it held that the trial Judge did not
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infringe the appellant’s right to fair hearing. The learned counsel to the appellant submitted that he was not accorded fair hearing to the appellant having not been given him any opportunity to call additional witnesses and for the request of his counsel to address the Court in conclusion of his defence before the trial Court. He referred to the proceeding of the trial Court held on 11/11/2008, where the Court granted him last adjournment after the two earlier adjournments at the instance of the defence to enable it call its last witness. He then submitted that the appellant could not call his last witness because of the persistent absence of the prosecution from the proceedings despite issuance of and service of hearing notice on it.
He argued that the manner and the entire circumstances leading to the sudden closure of the appellant’s case is questionable. He argued that trial Court ought to have exercised extreme restraint before it proceeded to deliver its Judgment in this case when it was supposed to be for further hearing of the defence and address by counsel of the appellant. He submitted that the right of counsel to make final address at the
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conclusion of a matter or a trial was given Judicial recognition in the case of UZOWULU VS AKPOR (2015) All FWLR (pt 763) p.1958. He urged the Court to also resolve this issue in favour of the appellant and to allow the appeal.
In response to the argument of the appellant’s learned counsel, the learned Counsel for the respondent also submitted for issues for determination.
Issue no 1 deals with whether the Court below was right in holding that the prosecution proved its case beyond reasonable doubt.
The learned counsel for the appellant argued that the extra Judicial statements of the appellant and those of other co-accused persons disclosed evidence of the offence of conspiracy among them by luring the deceased to the 3rd accused person’s farm. He argued further that in the exhibit it is established that the appellant and the other accused persons had settled somewhere for the purpose of raping the deceased. He argued that Exhibit 9 i.e. the medical report equally established the death of the deceased and its cause. (pages 48-55) of the record. He submitted that from the evidence of PW 4. It would be rightly deduced that the deceased died from the
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combined effect of injuries inflicted on her by the appellant in the process of raping her.
He argued that it leaves no one in doubt, that the appellant killed the deceased having admitted strangulating the deceased’s neck and throat with a view of concealing the crime. He urged the Court to resolve this issue in favour of the respondent.
ISSUE NO.2
This issue deals with rejection of alibi raised by the appellant.
He submitted that it is not enough for the appellant to raise a defence of alibi at large but he must go further to furnish adequate particulars which will assist the police to make meaningful investigation. He cited the case of NJOVENS V THE STATE (1973)1 NWLR 331. He referred to Exhibit 10 dated 6/6/2003 and argued that a critical look of the said exhibit will reveal that the appellant failed to mention the specific time he left the locality where the said crimes in question were committed at Omituntun as it would have assisted the police to investigate the alibi. He submitted that a vague and porous alibi like the one set up by the appellant in the instant case, is devoid of sufficient facts to warrant investigation and that
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defence therefore cannot avail the appellant. He argued further, the Alibi raised in the course of appellant’s examination in chief is not expected to be investigated by the police for the Court to sustain it. He cited the case of NJOKUMANI V STATE (2001) 14 NWLR 96. He urged this Court to discountenance the defence of alibi raised by the appellant
Issue No 3
Issue no 3 deals with whether the Court below was right in holding that the trial Court rightly relied on Exhibits 5, 6, & 7.
Respondent’s learned counsel stated that Exhibits 5, 6 & 7 are confessional statements of the appellant, 2nd and 3rd accused persons respectively and he argued that the appellant or his counsel did object to the admissibility of Exhibit 5 when it was tendered in evidence but it was during the appellant’s evidence in chief that he retracted the said statement. He submitted that an accused person can be convicted on his true and positive confession alone, even where he has retracted same. He cited the case of YESUFU V THE STATE (1976) 6 SC. He submitted that all that the law requires is that such statement must pass the test laid down in R V SKYES CAP, 113
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which said decision has been adopted by the Supreme Court in plethora of decided authorities. He referred to the case of STEPHEN V THE STATE (1980) 8-11 SC 236.
He argued further, that it is not in every case that evidence of a co-accused person will be inadmissible against other accused person(s). He submitted that where there is a nexus between the contents of a statement of a co-accused with other independent evidence, like in the instant case, the general rule gives way for reality. He cited the case of ADELEKE V STATE (2013) 12 SCM (pt 2) 1. He therefore submitted that the trial Court was convinced that Exhibits 5, 6 & 7 passed the required test. He submitted also that the exhibit which contained the purported alibi was rightly expunged because it lacks necessary particulars and the appellant never adduced any evidence in support thereof, in line with the Supreme Court decision in ALIMU V STATE (2009) 4 SCM 40. He urged the Court to resolve this issue in favour of the respondent.
Issue No 4
Issue no 4 deals with whether the Court below was correct in holding that the refusal of the trial Court to wait indefinitely for the appellant’s
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address did not amount to denial of fair hearing. He referred to the proceedings of 11/11/2008 where it is shown that the appellant was still unable to bring his witness despite previous adjournments at its instance. He argued that since the Court could not wait endlessly for appellant and his witness, then it was in order for the trial Court to close the case of the defence. He argued further that the deliberate refusal of the appellant’s counsel to address the Court could not be prejudicial to the opportunity of fair hearing accorded the parties. He urged the Court to affirm the decision of the lower Court and dismiss the appeal.
RESOLUTION OF ISSUES FOR DETERMINATION
As I posited above, the first issue raised by the appellant in his brief of argument relates to the defense of Alibi raised by the present appellant, the appellant queries the resolve by the lower Court to endorse the trial Court’s rejection or discountenance of the defense of Alibi raised by the appellant in his extra- judicial statement (i.e. Exhibit 10) and also in his subsequent defense when he raised it when he testified for his defense. It is instructive to note that in his
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extra-judicial statement Exhibit 10, which appeared to have semblance of an alibi defense, the appellant’s statement which was recorded on 6th June 2003, where the appellant stated thus: –
“l went to the said farm yesterday 5/6/3003 at about 12 noon. I returned from the farm and I started doing work but closed around 4pm. I returned to paradise where I am living. From (sic) went to Omituntun camp where my brother’s wife was about to born (sic) and I returned at about 12 midnight to paradise.”
It must be emphasized here, that the word or phrase “Alibi” simply means “Elsewhere”. Whenever it is raised as a defense, all that the defendant or appellant is suggesting is that “as at the time the offence he is charged with was committed, he was somewhere and not at the scene of the commission of the offence or wrongful act”. Therefore, whenever it is raised as a defense by an accused/or defendant, it becomes incumbent upon him to adequately furnish detailed information of his whereabouts at the time the offence charged was committed or the conspiracy was perpetrated. It is only when he satisfactorily provides such vital information of his whereabouts, that
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the police will investigate in order to verify whether he was actually at the place he alleged he was at the time of the commission of the offence and that he was NOT really at the scene of the crime. Where he fails to give or provide such detailed information, the police have no obligation to investigate the claim, as the law does not enjoin them to embark of chase of wild goose. However, if such detailed information was given by the appellant/accused at the earliest time, then the police are duty bound to investigate and if they fail to do so the accused/appellant may be acquitted. See Ajayi v State (2013) ALL FWLR (pt.711)1457 at 1462; Udo Ebre v The State (2001) 6 SCNJ 66, Sowemimo v The State (2004) SCNJ 153, Adio v State(1986)4 NWLR (pt.3)143; Adekunle v State (1989)5 NWLR (pt.123) 505.
The law is well settled that if an accused person wants to take advantage of the defense of Alibi, he must give detailed particularization of his whereabouts on the date and time of the commission of the crime or wrongful act which will include not only the specific place or places where he was, but also he must make mention of the people he was in company of and
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what transpired at the house and place, and such information must be unquestionable and must also be capable of being verified when investigated by the police if they had wanted to do so. See Udo Ebre v The State (supra). Also, all these information must be furnished at the earliest stage e.g in his statement to the police so as to give investigators enough chance and time to the police to verify or ascertain. See Gachi vs The State (1995) NMLR 333. I must stress here, that a defense of alibi without providing sufficient facts to call for verification is nebulous and porous and it can not avail the accused person or defendant. But where detailed information of the alibi and sufficient particularization of the whereabouts of the accused are given, it then becomes imperative upon the police to investigate because the law does not put a burden on the accused to prove or establish his alibi. See Okosi v The State (1989)1 SCLRN 29; Yanor V The State (1965)1 All NLR 1 & 3. The burden is always on the prosecution to disprove the defense of alibi where it is duly raised timeously with detailed, clear and unambiguous particularisation. See Ogoala v State (2009)7
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ALLR 307.
A dispassionate perusal of the defense of alibi raised by the appellant in his statement Exhibit 10 excerpt of which had been reproduced above, clearly shows that the appellant failed to give the specific time he left his locality where the crime was committed ie “Omituntun”. He also failed woefully, to state or furnish the particulars of his so-called brother’s wife or where she was living in Omituntun. All these pieces of information which are supposed to be within his knowledge alone, should have been revealed or furnished to the police timeously for the police to verify in the course of their investigation.
Unfortunately, those details were not given which results to the alibi defense being considered as vague, scanty and insufficient. Some of the facts were also not provided timeously but were rather given by the appellant during his testimony for his defense. They were therefore given at the 23rd hour of the day thereby making it impossible or impracticable for the police to investigate or verify hence it makes the defense untenable.
In the light of my discourse above on this issue, I am inclined to endorse the finding of the
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lower Court where it states on page 340 lines of 11 to 14 of the Record as below: –
Therefore, I firmly agree with the reasoning of the learned trial judge that Exhibit 10 was a complete fabrication, a conclusion and an afterthought. I also disbelieve and accordingly reject the contents of exhibit 10. The learned trial judge was therefore in order by expunging Exhibit 10 from the records of the Court. I so hold. It is my candid view that the appellant failed to establish alibi as he did not properly furnish the police with adequate particulars of where particularly and who he was together with at the time of the murder incidence. And as such can not avail him. See the case of Sunday V State (2010)18 NWLR (pt.1224)223 SC.
In view of the aforesaid, I firmly hold the view that the Court below is correct in endorsing the dismissal and discountenancing the defense of alibi raised at the trial Court by the appellant as it is vague and is mere afterthought. I therefore resolve the first issue for determination in favour of the respondent against the appellant herein.
On the second issue for determination, it can be discerned from the
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printed record that the appellant made a confessional statement which was tendered at the trial Court and marked Exhibit 5. In that exhibit the appellant had unequivocally admitted that he connived with the 2nd and 3rd accused persons to rape and subsequently kill the deceased. It is pertinent to say that when Exhibit 5 was tendered in evidence by the respondent at the trial, it was not objected to by the appellant’s learned counsel. It was only at a later time during his defense that the appellant retracted or resiled from the contents of his own confessional statement which he voluntarily made when the facts of the case were very fresh in his mind.
The appellant’s confessional statement was corroborated by Exhibits 6 and 7 which were the confessional statements of the 2nd and 3rd accused persons wherein the two accused persons clearly and unambiguously owned up to the commission of the offences along with the present appellant. The law is trite, that where there is a nexus between the contents of a statement of a co-accused with other independent evidence, such corroborative evidence is relevant and admissible and would be regarded to have supported or
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confirmed the evidence in question and can be acted upon by the trial Court to convict as in this instant case. The bottom line is that a confessional statement so long as it is free direct, positive and voluntary is enough to ground conviction. See R v Omokaro (1941) WACA 146; Kopa v The State (1971) 1 AUNC RISO.
The learned counsel for the appellant expressed his grudge on the trial Court’s utilization of the evidence of the co-accused persons as per Exhibits 6 & 7 as corroborative of the appellant’s confessional statement and referred to Section 27 (3) of Evidence Act, now Section 29 (4) of Evidence Act 2011, and the cases of Ghohor v State (2013) All FWLR (pt 709) 1061 at 1065 and Suberu v State (2010) 3 SC (pt 11) 105.
With due deference to the learned appellant’s counsel, this Court in the case of Adeleke vs State (2013) LPELR 20971 (SC) clarified the situation when it held thus: –
“On the issue raised by the appellant that the evidence of a co-accused is not admissible against the other co-accused persons is not a general rule that is taken hook, line and sinker without exception.
This is because where as in this case, there
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is a link or nexus from the contents of the statement of a co-accused or even from other independent evidence then the exception is accepted as making that general rule aforesaid give way for the reality on the ground.”
See also Oyakhire vs The State (2006) 12 SCM (pt I) 369 at 380 381.
As I stated above, there is link or nexus between the appellant’s confessional statement (Exhibit 5) and those of the 2nd and 3rd co-accused persons besides other independent evidence which had duly corroborated the confessional statement of the appellant. I therefore have no hesitation in endorsing the finding of the lower Court when at page 323 of the record, it stated as follows: –
“It is clear from the above excerpt that the learned trial Judge having evaluated Exhibits 6 and 7 which are purported voluntary confessional statements of 1st, 2nd and 3rd accused persons the evidence before the Court and demeanor of the accused persons arrived at the conclusion that Exhibit 5 which is credited to the Appellant herein, was made on 12/6/2003 and which corroborates Exhibits 6 and 7.”
In the light of all that I posited supra, I am equally convinced that the Court
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below is correct in its finding that the trial Court was correct in holding that statements of the co-accused persons have duly corroborated the statement of the appellant and that they were rightly accepted and used in grounding the conviction of the appellant herein. The second issue is therefore also resolved against the appellant.
Issue No 3
Coming to the third issue for determination which has to do with the issue of proof of the offences against the appellant beyond reasonable doubt by the prosecution. In this instant case, ample evidence abound to show that all the three accused persons (the appellant included) had hatched the consensus to commit the offence of rape against the deceased.
The question of who really committed the act of rape in the end is of no moment since all of them had earlier agreed and resolved to commit the offence of rape on their deceased victim before killing her.
On the offence/charge of murder, it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods. The methods are
(a) Through evidence of eye witness or witnesses<br< p=””
</br<
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(b) Through voluntary confessional statement of the accused or accused persons, and
(c) Through circumstantial evidence
See Agboola v The State (2013) LPELR 20652 (SC). Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the underlisted ingredients of the offence of murder, namely:-
(1) The death of a human being
(2) That the death was caused by the act or commission of the accused person/and
(3) That the act of the accused was done intentionally or with Knowledge that death or grievous bodily harm was the probable consequence.
See Okeke v The State (1999) 2 NWLR (pt 590) 246 at 273.
Now in this instant case, there is adequate evidence showing that their victim Silifat died as confirmed by the medical report Exhibit 9. That piece of evidence was further supported by the pathologist report which confirmed that there existed male sperm cells, forceful strangulation and bruises on her body and neck.
Therefore, death can be said to have been established which was caused by grievous harm. Naturally, the dastardly act of the appellant and his other
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co-accused persons can be said to have resulted in the death of the deceased and I must add that such sexual attack, the strangulation and evidence of existence of bruises on the body of the deceased must have been inflicted on her intentionally by the appellant and other co-accused persons with the intention to kill her or with knowledge that death could be the probable cause of their act. See Orisakwe v The State (2004) 12 NWLR (pt. 2007) 5; The State v Babangida John (2013) 11 SCM 172; The State vs Babawuro Usman (2007) 5 ACLR 34 at 41/42.
Thus, from the circumstances of this case and in the light of these pieces of evidence adduced by the prosecution/respondent there is no doubt that all the ingredients of the offence of murder had also been duly proved by the prosecution beyond reasonable doubt, as there was no evidence controverting or contradicting them.
The prosecution, as rightly found by the trial Court and endorsed by the lower Court, had proved the offences of conspiracy and murder against the appellant beyond reasonable doubt. The lower Court was therefore right in so holding. The third issue for determination raised by the appellant is
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hereby also resolved against him (the appellant).
It is worthy of note, that in this instant case, there are concurrent findings of two lower Courts which this Court hardly interferes with or disturbs except on special circumstances such as where the findings are perverse or there exists misapplication or misapprehension of substantive or procedural law.
None of these viruses exists in this case, hence this Court has no business tampering with the findings of the lower Court in any respect. See Dibiamaka v Osakwe (1989) 3 NWLR (pt 107) 101; Ibuluya v Dikibo, Omotola & Ors vs The State (2009) 8 ALLR 29 at 78.
In the result, having resolved all the three issues raised and argued in the appeal by the appellant against the appellant, this appeal is adjudged unmeritorious. It fails and is accordingly dismissed. The Judgment of the trial Court which had been affirmed rightly by the Court below, is hereby further confirmed. Appeal dismissed.
IBRAHIM TANKO MUHAMMAD, Ag. C.J.N.: I have had the opportunity of reading before now, the judgment just delivered by my learned brother, Sanusi, JSC. I agree with his reasoning and conclusion that the
26
appeal lacks merit and should be dismissed. I too, hereby, dismiss the appeal for lacking in merit. I abide by all orders made in the leading judgment including one on costs.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to register the support I have in the reasonings from which the decision came about, I shall make some comments.
This is an appeal against the judgment of the Court of Appeal, Akure Division or Lower Court or Court below, Coram: Mojeed A. Owoade, M. Danjuma and James S. Abiriyi JJCA delivered on the 7th day of August, 2014 dismissing the appellant’s appeal against the judgment of the Ondo State High Court sitting in Ondo presided by F. O. Aguda-Taiwo on the 5th day of August 2010 and upheld the conviction and sentence of the appellant to death by hanging.
The facts leading to this appeal are well set out in the lead judgment and no useful purpose will be achieved by repeating them except for when the circumstances warrant a reference to any part thereof.
On the 21st day of February 2019 date of hearing, learned counsel for the
27
appellant, Olanrewaju Ismailia Oliyide Esq. adopted the appellant’s brief of argument filed on 20/10/2015 and deemed filed on 11/4/18. In the brief were distilled three issues for determination which are thus:-
i) Whether the learned Justices of the Court of Appeal were right and applied the correct principle of law when they dismissed and/or discountenanced the defence of alibi promptly raised by the appellant herein. (Distilled from Ground 1 of the Notice of Appeal).
ii) Whether the learned Justices of the Court of Appeal were right and applied the correct principle of law in acting and relying on alleged confessional statement of co-accused (DW1 and Dw3) respectively as corroborative evidence to sustain the conviction and sentence of death imposed on the appellant. (Distilled from Ground 2 of the Notice of Appeal).
iii) Whether the learned Justices of the Court of Appeal were right and came to the right conclusion when they held that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt in the absence of proof of essential ingredients of the offence of conspiracy and made by the prosecution against the
28
appellant. (Distilled from Ground 3 of the Notice of Appeal).
Learned counsel for the respondent, Prof. Joseph N. Mbadugha Esq. adopted the brief of argument filed on 26/10/17 and deemed filed on 11/4/18. In the brief were formulated four issues for determination as follows:-
1. Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt at the trial Court. (Ground 3 of the Notice of Appeal).
2. Whether the learned Justices of the Court of Appeal were right when they discountenanced the defence of Alibi raised by the appellant. (Ground 1 of the Notice of appeal).
3. Whether the learned Justices of the Court of appeal were right in holding that the trial Court rightly relied on Exhibits 5, 6, and 7 and expunged Exhibit 10 in view of its inadmissibility. (Ground 2 of the Notice of Appeal).
4. Whether the learned Justice of the Court of Appeal were right in holding that the refusal of the trial Court to wait indefinitely for the appellant’s address before delivering its judgment did not amount to lack of fair hearing and miscarriage of justice. (Ground 4 of the Notice of Appeal).
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I see Issue 1 of the respondent sufficient to answer the questions raised in this appeal and I shall do so naming it sole Issue.
SOLE ISSUE:
Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt at the trial Court.
Learned counsel for the appellant submitted that the concurrent finding of the two lower Court stemmed from serious misdirection on the alibi raised by the appellant which alibi the prosecution failed to investigate and debunk. That the finding and conclusion of the two Courts below were perverse. He cited State v Ajie (2000) 11 NWLR 434 at 449.; Mamman v FRN (2013) All FWLR (Pt.697) 702 at 704.
Also advanced for the appellant is that the two Courts below erred with their findings of the contents of the alleged confessional statement of the appellant, Exhibit 5 and should not have given proper consideration of Exhibit 10 another statement of the appellant, favourable to him.
Learned counsel for the appellant contended that the two Courts below were wrong in using the extra-judicial statements of the co-accused of the appellant
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in convicting him.
He cited Ghohor v State (2013) All FWLR (Pt.709) 1061 at 1065; Suberu v State (2010) 3 SC (Pt.11) 105; Bassey v The State (1993) 7 NWLR (Pt.306) 469 at 481.
It was stated for the appellant that the essential ingredients of the offence of murder against the appellant were not made out and so it cannot be said that the case was proved beyond reasonable doubt. He cited Njoku v The State (1993) 6 NWLR (Pt.299) 272; Grace Akpabio & 2 Ors v The State (1994) 7-8 SCNJ (Pt.111) 429.
Also contended for the appellant is that the conviction of the appellant for a charge of murder is perverse having been based on speculation and suspicion as opposed to concrete evidence before the Court thus leading to a miscarriage of justice. He cited Bozin v State (1985) 2 NWLR (Pt.8) 465 at 467; Abioye v State (1987) 2 NWLR (Pt.58) 645 at 647.
Learned counsel for the appellant raised the issue of the denial of fair hearing for the appellant contrary to Section 36 (4) and 6 (b) of the 1999 Constitution as amended as appellant was not given the opportunity to adduce evidence that would have aided his defence including counsel’s address.
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He cited Ogunsanya v State (2011) 6-7 SC (Pt.11) 56 at 71; TransAmerica Corporation v Akande (2014) All FWLR (Pt. 759) 1077 at 1079.
Learned counsel for the respondent submitted that the extra- judicial statements of the appellant and those of the other co-accused persons disclosed a conspiracy to rape the deceased by luring her into the farm of the father of 3rd accused person. He cited Shurumo v The State (2010) 9 NWLR (Pt.1226) 73 at 339; Haruna v The State (1972) All NLR 738; The State v Salawu (2011) 48 NSCQR 290.
That the evidence of PW3 and PW4 and Exhibit 9, the medical report established what led to the death of the deceased. That the confessional statement of the appellant, Exhibit 5 was properly admitted and had probative value as ascribed by the trial Court and from it the intention with the knowledge that death or grievous bodily harm would be the probable consequence were therein embedded. He referred to Orisakwe v The State (2004) 12 NWLR (Pt.887) 34; State v Usman (2007) 5 ACLR 34 at 41-42; Nyambus Kpata v The State (1977) 1 FCA 259; The State v Babangida John (2013) 11 SCM 172 etc.
That where there is a nexus between the contents
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of a statement of a co-accused person with other independent evidence, then the general rule that the statement of a co-accused is inadmissible against another accused would not apply. He cited Adeleke v The State (2013) 12 SCM (Pt.2); Ibrahim v The State (2013) 12 (Pt.3) SCM 547.
Learned counsel for the respondent stated that it is not enough for an accused to raise the defence of alibi without furnishing adequate particulars that would assist the police to make meaningful investigation of the alibi as happened in this case. He cited Balogun v Attorney General Ogun State (2002) FWLR (Pt.100) 1287; Obiode v The State (1970) 2 All NLR 35; Njovens v The State (1973) 1 NWLR 331 etc.
That the appellant could be convicted on his confessional statement, Exhibit 5 alone as it was direct, cogent and unequivocal and passed the tests in R v Sykes (1933) CAR 113. He referred to Yesufu v The State (1976) 6 SC 167; Salawu v The State (1971) 1 NMLR 249; Godwin Ikpasa v Attorney General Bendel State (1981) 9 SC 7 etc.
It was contended for the respondent that the trial of the appellant was conducted within the tenets of fair hearing. He cited Egbo v Agbara
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(1997) 1 NWLR (Pt.481) 293 at 314; Ariori v Elemo (1983) 1 SCNLR 1.
That sufficient opportunity was given to the appellant for his defence and counsel’s address. He citedEffiom v The State (1995) 1 NWLR (Pt.379) 507.
That there is no basis for this Court to interfere with the concurrent findings of the two Courts below as nothing perverse happened leading to the findings and conclusion.
Having stated the summary of the standpoints of the parties on either side, I shall recast excerpts of what the trial Court and the Court below did thus: –
The trial Court stated as follows: –
“Where was the 1st accused person on the date of the alleged murder Did he go to his farm early in the morning and then to Omunutu and slept in Baba Beniati’s house in Asejire or did he go to Igbokoda with market women and later to Omunutu where he slept. He would have let the police know at the earliest possible time where he was at the time of murder”.
The learned trial judge further stated as shown at pages 115-116 of the record as follows: –
“The 1st accused person, who testified as DW1, in his evidence in the Court stated that he was somewhere
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else and was not at the scene of crime with which he is charged. By so doing he raised the defence of alibi at large…”
The learned Justices of the Court of Appeal concurred with the decision of the trial Court discountenancing the defence of alibi raised by the appellant when it held as follows: –
“It is my candid view that the appellant failed to establish alibi as he did not properly furnish the police with adequate particulars of where particularly and who he was together with at the time of the murder incidence. And as such cannot avail him”.
The defence of alibi raised by the appellant is shown in Exhibit 10 made on 6th January, 2003 which I recast thus: –
“Driving work is my work and on the other hand I am also a farmer. I am the owner of a Toyota Car Registration NO. AA 337 REE. I have been living in Asejire camp for the past five years now. I parked to paradise the other side of the express since two years ago I and my wife and three of my children. This year 2003 not quite long that I rented two farms at the rate of fifty thousand-naira N50,000.00 have been doing this farm work at Asejire camp. I went to the said farm yesterday 5/6/2003
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at about 12 noon, I returned to paradise where I am living. From there I went to Omunutu camp where my brother’s wife was about to born and I returned at about 12 midnight to paradise. When I got to Asejire camp, I saw that they block the road against us then I parked my car by the side of the road and I was about to pass by foot but the Yoruba people around warned me not to leave Asejire camp on that night so that they will not I know anything about this matter. However I slept there until the following morning, around 3am on 6/6/2003. They woke all of us in the camp and they call one woman who said that I pursued her with cutlass four day ago. They asked us to explain and that they said that another one has happened that somebody has killed one woman in the farm therefore they will not leave me. I did not know anything about the death of Iya Lekan. It was true that I know Iya Lekan for the past three years now. She was trading on cola know Ayo Omodulemi ‘m’, I did not follow him to the farm to kill somebody. I did not know Omojola as the second suspect.
I am not a murderer and I have never kill somebody before this are implication to me”.
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Again, in the extra-judicial statement of the appellant, Exhibit 5 which is a confession and emphasising the agreement between him and the co-accused. I shall recast some of the excerpts as follows: –
“… On 5/6/2003 in the morning time I went to one woman called Mama Lekan and told her that she should come and buy colanut at Ayo’s father farm (sic). I informed Ayo Omoduyilemi and Omotala Akinlomi whom I had already planned with that we shall tricked (sic) the said woman to farm and have sex with her.”
On page 12 of the Record of Appeal is the following relevant extract from the statement of the appellant, Exhibit 5 thus: –
“… On getting to the farm, the woman asked Ayo that where is the cola nut she is to buy. I replied the woman that there is no cola nut for her to but we are here to have sex with her. She refused but when she sees that I am forcing her, she pleaded that we should not kill her. I then used her clothe to cover her mouth so that she will not cried (sic) out. I then forcefully had sex with her.”
The Court below reached a finding and conclusion as follows:-
“I find that the appellant together with the 2nd and 3rd accused person
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conspired to carry out the unlawful act. By Exhibit 5 the appellant to my understanding masterminded the orchestrated unlawful act… The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common purpose… it is also trite that when two or more persons actively participated in the commission of a crime, in the execution of a common intention, each of them would be liable for the offence”.
The stand taken by the Court of Appeal is on solid ground as even from the confessional statements of the appellant are found the meeting of the minds of himself and the other accused persons sharing a common purpose to participate in the commission of the crime of rape which ended in the demise of the deceased. Since appellant and his co-travelers conspired to rape the deceased and in the process death ensued it does not matter which of them did what act that caused the death of the deceased. See Haruna v The State (1972) All NLR 738; The State v Salawu (2011) 48 NSCQR 290; State v Oladimeji (2003) FWLR (Pt.175) 395 (SC) pages 409 – 410.
Now turning to the offence of murder, the essential elements of that
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offence which must be established either directly by eye witness or circumstantially or by confessional statement of the accused are thus: –
i. the death of the deceased;
ii. that it was the act or omission of the accused which caused the death; and
iii. that the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See The State v Ogbubunjo (2001) FWLR (Pt.37) 1097; (2001) 1 SCNJ 86; Fatilewa v The State (2007) 5 ACLR 607 at 629; Okeke v The State (1999) 2 NWLR (Pt.590) 246 at 273.
In proving these essential ingredients, the prosecution witnesses PW2, PW3 and PW4 testimonies showed that it is not in dispute that Mrs. Silifat Rahman died and that she did not commit suicide. Also the medical report Exhibit 9 proffered by PW4, the pathologist stated that he found male sperm cells and the cause of death was manual strangulation and that there were bruises to the body of the deceased. Clearly the medical evidence corroborated what the appellant admitted in his confessional statement Exhibit 5.
From the evidence adduced by the prosecution witnesses including the
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medical evidence of the pathologist and the confessional statement of the appellant, it is safe to say that the cause of death was established beyond reasonable doubt and the act of the appellant and cohorts led to that and the intention to cause the death or grievous bodily harm the probable consequence inferred therefrom. See Orisakwe v The State (2004) 12 NWLR (Pt.2007); 5 ACLR 34 at 41-42; Nyambus Kpata v The State (1977) 1 FCA 259; The State v Babangida John (2013) 11 SCM 172; Nwokearu v The State (2003) 9 SCM 124; The State v Babawuro Usman (2007) 5 ACLR 34 at 41-42.
In Exhibit 10, the appellant’s other extra-judicial statement he had raised an alibi clearly at large since there were no specific details to enable the police to investigate. The time he left the locality in his alibi was not specific nor the particulars of his brother’s wife who was being delivered of a baby where he was supposed to have gone. Therefore, the said defence of alibi went to no issue and it is all the more useless to the appellant with the prosecution evidence pinning him at the scene at the time of the commission of the offence. See Balogun v Attorney-General Ogun State
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(2002) FWLR (Pt.100) 1287; Obiode v The State (1970) 2 All NLR 35; Njovens v The State (1973) 1 NWLR 331. The appellant’s attempt in the witness box to change the deficiency to credit failed as his narrative did not assist his cause even though at that stage the proof is on the balance of probability. See Okosi v The State (1989) 1 NWLR (Pt.100) 642; Njokumani v The State (2001) 14 WRN 96; Akpan v The State (2001) 6 NSCQR (Pt.11) 755; Adeyeye v The State (2013) 2 SCM 20.
In addition is the fact that the Court below agreed with the trial Court’s expunging of Exhibit 10, the extra-judicial statement of the appellant which the two Courts below held to be a complete fabrication and an afterthought which set off an alibi in the air as there were no adequate particulars and was vague as to who he was with at the time of the incident. See Sunday v State (2010) 18 NWLR (Pt.1224) 223; Agboola v State (2013) 8 SCM 157.
The appellant has urged the Court to hold that the two lower Courts erred in relying on Exhibit 5, the confessional statement of the appellant on the ground that there is no credible and cogent independent evidence that makes it probable
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that the alleged confession was true. This stance of the appellant does not hold water to the position pushed forward by the respondent which posits that the confession is true, positive and cogent and on its own would sustain the conviction and sentence to death of the appellant. Indeed, the standpoint of the respondent is supported by the record.
Firstly the confession is well corroborated by other independent evidence and secondly the statement itself having been established to be true and probable and presenting a nexus between the appellant and his co-accused is on its own alone would sustain the conviction. See Yesufu v The State (1976) 6 SC 167; Salawu v The State (1971) 1 NMLR 249; Godwin Ikpasa v Attorney-General Bendel State (1981) 9 SC 7; Stephen v The State (1980) 8-11 SC 236; Ogudo v The State (2011) 11-12 (Pt.1) SCM 209 at 240; Adeleke v State (2013) 12 SCM (Pt.2) 1.
The appellant had raised the issue of having been denied fair hearing since the address of his counsel was not allowed in. This is usually a very attractive posture to take by a party to persuade Court to sympathise with his side. There is no gainsaying that a trial
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conducted without fair hearing would be rendered null and void but that upon the rider that when the opportunities are given to the party to make his case heard and fully and by his own making he fails to utilise the opportunity, he cannot hold either the other side of the Court to ransom. In the case at hand, the appellant’s cross-examination was concluded on the 2nd day of June 2008. He asked for an adjournment to call his witnesses and on the next adjourned date of 24th June 2008 no defence witness came and the matter was adjourned and on the 11th day of November 2008 appellant was still unable to bring a witness and the Court ruled for the last adjournment of hearing for the 1st of December for conclusion and address of counsel.
The records show that the order of 11th day of November 2008 was not carried out and the matter was adjourned to 29th June 2009 to enable parties comply with the order of 11th November, 2008 and still the defence did nothing and so judgment was delivered on 5th August 2010.
I agree with learned counsel for the respondent that opportunity was given for the appellant’s defence and address and the appellant failed to
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take advantage of the openings generously given him and so touting the denial of fair hearing just will not fly. See Ogunsanya v State (2011) 9 SCM 5 at 31 – 32; Effiom v The State (1995) 1 NWLR (Pt.379) 507.
This Court has stated at numerous occasions of its policy not to interfere with concurrent findings of fact of Lower Courts and only rarely does so in disturbance of such findings where the findings arose from an application wrongly made whether in substantive or procedural law or where miscarriage of justice has been occasioned. In the instant case the concurrent findings of fact leading to the conviction and sentence of the appellant are grounded on the evidence adduced borne out of the record and so the Court will keep within the tenets so well protected by this Court and all other appellate Courts to stay clear of those findings and not upset them. See Ebba v Ogodo (2000) FWLR (Pt.27) 2094; Omotola & Ors v The State (2009) 8 ACLR 29 at 78; Ibuluya & Ors. v Dikibo & Ors. (2011) 7 SCM 114-115; Dibiamaka v Osakwe (1989) 3 NWLR (Pt.107) 101.
The issue raised is resolved in favour of the Respondent as nothing has been put forward
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by the appellant to shake off the findings upon which the decisions earlier made by the two Courts could be disturbed. In line with the better reasoned lead judgment, I see no merit in this appeal and I dismiss it too.
I abide by the consequential orders made.
Appeal Dismissed.
EJEMBI EKO, J.S.C.: At the time this appeal was heard on 21st February, 2019 Hon. Justice SIDI DAUDA BAGE, JSC was a Justice of this Court and he participated in the hearing of the appeal. He has since ceased to be a Justice of this Court by reason of his intervening appointment as the Emir (the Dunoma) of Lafia. He had though participated in the conference culminating in this judgment before the said appointment.
At the trial Court the Appellant (1st Accused) and two others were jointly arraigned on a two count charge alleging conspiracy to commit rape, and the murder, of one SALIFAT RAHMAN (F). The 3rd Accused, who had died and was struck off the charge, was not subsequently tried with the 1st and 2nd Accused for the two offences charged. The offences were respectively punishable under Sections 516 and 316 of the Criminal Code Law of Ondo State.
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The Appellant (the 1st Accused) and the 2nd accused person were convicted for the offences under Sections 516 and 316 of the Criminal Code. They were, each sentenced to 7 years imprisonment for the offence under Section 516 of the Criminal Code. For the murder of Salifat Rahman, the offence under Section 316 of the Criminal Code, the Appellant (1st Accused) and the 2nd Accused were each sentenced to death.
At the trial the Appellant (1st Accused) and the 2nd Accused were represented by a Counsel. The Appellant appealed his conviction and sentence to the Court of Appeal, Akure Division (the lower Court for short). The lower Court dismissed his appeal; hence this further appeal.
The Appellant apparently, formulated 3 issues for the determination of this appeal. The 3 issues were formulated from Grounds 1, 2 and 3 out of the 4 grounds of appeal raised in his Notice of Appeal. The effect of the Appellant, seemingly, not formulating an issue for the determination of the appeal from Ground 4 of his grounds of appeal is that the said Ground 4 is deemed abandoned and therefore liable to be struck out.
The three issues formulated from the Grounds 1, 2
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and 3 of the Grounds of Appeal in paragraph 3.01 of the Appellant’s Brief, are: –
1. Whether the learned Justices of the Court of Appeal were right when they dismissed and/or discountenanced the defence of alibi promptly raised by the Appellant (from Ground 1 of the Notice of Appeal).
2. Whether the learned Justices of the Court of Appeal were right and applied the correct principle of law in acting and relying on alleged confessional statements of co-accused (DW.1 and DW.3) respectively as corroborative evidence to sustain the conviction and sentence of death imposed on the Appellant (From Ground of the Notice of Appeal).
3. Whether the learned Justice of the Court of Appeal were right and came to the conclusion when they held that the prosecution discharged the burden of proof of essential ingredients of conspiracy and murder by the prosecution against the Appellant (From Ground 3).
Issue 2, reproduced above, appears to be misleading. The decision of the lower Court, Ground 2 of the Notice of Appeal (from which issue 2 is formulated) was attacking, is at page 323 of the Record as follows:
It is clear from the above excerpt that the
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learned trial Judge having evaluated Exhibits 5, 6 and 7 which are the purported voluntary confessional statements of the 1st, 2nd and 3rd accused persons (sic: the 3rd Accused was not tried with the 1st and 2nd Accused), the evidence before the Court and the demeanor of the accused person (sic) arrived at the above conclusion. Exhibit 5 which is credited to the Appellant herein was made on 12/6/2003 and which corroborates Exhibits 6 and 7.
Exhibit 7 was the confessional statement of the 3rd Accused who, though was arraigned with the Appellant (1st Accused) and the 2nd Accused, was not tried with the 1st and 2nd Accused persons. The said 3rd Accused (Ayo Omoduyilemi) was in actual sense, not a co-accused person with the Appellant. Exhibit 6 was the confessional statement of the 2nd Accused, Appellant’s co accused. The Appellant’s Counsel had ingeniously distorted the comment of the lower Court to wit:
Exhibit 5 which is credited to the Appellant herein was made on 12/6/2003 and which corroborates Exhibits 6 and 7.
In paragraph 5.03 of the Appellant’s Brief he had boldly, without blinking at the Rules of Ethics, submitted
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It is imperative at this point to examine the status of Exhibits 6 and 7 used and relied upon by the trial Court to purportedly corroborate Exhibit 5 in order to convict the Appellant. It is submitted that Exhibits 6 and 7 were mere statements of co- accused persons charged with the Appellant.
It is on the basis of this misleading and deliberate distortion of the dictum of the lower Court that the Appellant’s Counsel then submitted, erroneously, that “extra-judicial statement of a co- accused (was) used to convict another accused person charged with the same offence”, relying on GHOHOR v. STATE (2013) ALL FWLR (pt. 709) 3 SC (pt. II) 105. The learned Appellant’s Counsel had thus construed the dictum of the lower Court above reproduced with a gloss placed on it to suit his purpose. This he cannot do, but he did unfortunately. If the learned Counsel had bothered to honestly analyse the dictum the inescapable truth of it that the lower Court did infact state ONLY that “Exhibit 5 corroborates Exhibits 6 and 7” and not the other way round.
In other words, Exhibits 6 and 7 were not used “to convict the Appellant”, as suggested and submitted by
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the Appellant’s Counsel.
At page 324 of the Record the lower Court went further, on Exhibit 5, to state that
The learned trial Judge found that the said Exhibit was direct and unequivocal. Appellant in the said Exhibit 5 admitted having committed the alleged offences he (was) charged with, Appellant narrated (therein) how he planned the whole act and how he stabbed the deceased severally after raping her. In the same statement, Exhibit 5, as excerpted somewhere in this case, Appellant confessed he was arrested three (3) days after the incidence.
It is clear, from this portion of the decision of the lower Court, that the lower Court did not use or rely on the alleged confessions of the 2nd and 3rd Accused persons, respectively Exhibits 6 and 7, to affirm the convictions of the Appellant. The lower Court did not, as erroneously submitted for the Appellant by his counsel, hold that Exhibits 6 and 7 corroborated Exhibit 5.
On the whole, I find no substance in this issue and it is accordingly resolved against the Appellant. The issue had been crafted ingeniously and unethically too to mislead this Court.
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Alibi is the substance of issue 1. It is an issue of fact on which the two Courts below had made their concurrent findings of fact. On this, the contention of the Appellant is that he did “provide credible and satisfactory answers to the questions of (his) whereabouts and the persons he was with on the date of the alleged murder incident and this Court and (that the) findings (were) not disturbed by the lower Court who failed to realise this fact when it erroneously held that the Appellant’s alibi is devoid of particularities necessary to sustain successfully grant (sic) of the defence of alibi in the Appellant”. In dismissing the Appellant’s bogus alibi the learned trial Judge held at page 174 of the Record
Where the 1st Accused person intended to rely on an alibi, he failed to call as witnesses his brothers Ezekiel or Augustine, Baba Beniah, his wife, father and any of the passengers which he took to Igbokoda and others whom he claimed saw him on the day of the alleged murder. I find that the 1st Accused person had no defence to this case.
The complaint of the Appellant on this dictum is that, by this pronouncement, the trial Court had placed on the
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Appellant “the burden of proving or disproving the defence of alibi on the Appellant who is merely required by law to introduce same”. For this misconception of the evidential burden cast on the Appellant who had raised alibi; Appellant relied on EGWUMI v. STATE (2013) ALL FWLR (pt. 678) 824 and OGOALA v. STATE (2009) 7 ACLR 357.
Yes, it is the law that the prosecution bears the burden of proving the guilt of the accused person beyond reasonable doubt. It is also the law that it is the duty of the accused person to cast reasonable doubt on the case the prosecution had made out against him, including Exhibit 5, his own confession fixing him to the crimes. Sections 131 and 132 of the Evidence Act impose on the accused person raising and relying on alibi as his defence the burden, evidentially, to establish his assertion. Since it is the accused person who desires the Court to give judgment affirming the defence of alibi he asserts, the evidential burden is cast on him to establish that assertion. That evidential burden is on him to discharge since upon a prima facie case had been made against him from the prosecution’s evidence he, it is, who will fail
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if no evidence at all were given on either side on the alibi he asserted by him. The prosecution has no duty to rebut what is asserted, but not established.
The Appellant has not been able to establish that the concurrent findings by the two Courts below, that the Appellant failed to establish his alibi, were unreasonable or perverse. I cannot fault the finding of the lower Court, upon proper re-evaluation of the available evidence, that the alibi put up by the Appellant “was a complete fabrication; a concoction and an afterthought” and that both the trial Court and the lower Court were right in dismissing it.
The only serious complaint made under issue 3 is the assertion that “both the trial Court and lower Court never made any finding of fact, based on the printed record, linking the Appellant with the death of the deceased”. This assertion is preposterous, considering the fact in paragraph 6.04 of the Appellant’s Brief. The Appellant’s Counsel further complains that the finding at pages 120 1211 of the Record by the trial Court is perverse. That is
On the whole I find that the 1st Accused person was the person who
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physically inflicted the deadly premeditated and unprovoked assault on the deceased in the presence of the 2nd and 3rd accused persons who stood by and watched and did nothing to prevent the assault. The assault was premeditated because the 1st accused person carried a deadly weapon with him to the farm. I therefore find that the confessional statement of the accused is direct to ground
the conviction of the 1st Accused (Appellant). The lower Court affirmed this finding of fact. Thus, there were concurrent findings of fact linking the Appellant with the death of the deceased.
The lower Court had further found, as a fact at page 343 of the Record, that “the Appellant having conspired to rape and did rape the victim, stabbed her severally knowing fully well the consequences of his actions” and that “it is not in doubt therefore that the Appellant here in participated actively in terminating the life of Salifat Rahman”. It also found that Exhibit 9, that autopsy report of the PW.4, confirmed “the brutal murder of the deceased”, which the Appellant confessed to in Exhibit 5. It is therefore not correct, as submitted on behalf of the Appellant, that the
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two Courts below “never made any finding of fact based on the printed record linking the Appellant with the death of the deceased”. They did. And on this note I also resolve this issue against the Appellant.
The Appellant’s Counsel had belatedly argued the complaint in Ground 4 of the Notice of Appeal under issue 4. His contention is that the trial Court’s judgment delivered without hearing, or giving the Appellant an opportunity to deliver, his final address was a denial of his right to fair hearing which vitiated the entire proceedings. Prof. Mbadugha of Counsel to the Respondent submits, in response, that the trial Court on 11th November, 2009 adjourned the trial to 1st December, 2009 for conclusion of the trial and final addresses and that the Appellant and his Counsel having failed to utilize the opportunity given to them cannot be heard to complain. This argument is firmly rooted in EFFIOM v. THE STATE (1995) 1 NWLR (pt. 379)507; OGUNSANYA v. STATE (2011) 9 SCM 5 at 31 – 32. Fair hearing, as correctly submitted by the Respondent’s Counsel, means a trial conducted according to established rules formulated to ensure that justice is done to all
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parties even handedly. I agree. EGBO v. AGBARA (1997) 1 NWLR (pt. 481) 293 at 314; ARIORI v. ELEMO (1983) 1 SCNLR 1, amply support the contention. No litigant, therefore, has liberty to conduct his affairs in the law Court, where procedure and practice are regulated by formal procedural rules, in a manner he chose for himself or according to his whims and caprices. The rules of Court, like orders of Court, are not made for fun. They are meant to be obeyed and/or complied with. A party who ignores or disobeys the rules or orders of Court does so to his own detriment. He cannot therefore be heard, afterwards, that the Court, insisting that the rules or orders of Court are obeyed, had violated his right to fair hearing. This issue is accordingly resolved against the Appellant.
For these reasons and the fuller reasons in the judgment just delivered in this appeal by my learned brother AMIRU SANUSI, JSC, which judgment I hereby endorse, the appeal is hereby dismissed. Accordingly, the judgment of the lower Court delivered on 7th August, 2014 in the appeal No. CA/AK/141C/2011 affirming the conviction and sentence of the Appellant is hereby affirmed.
Appeal dismissed.
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SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed.
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Appearances:
Oliyade Olanrewaju Ismaila with him, Adeolu Salako For Appellant(s)
Prof. J. N. Mbadugha with him, Rita Campbel For Respondent(s)
Appearances
Oliyade Olanrewaju Ismaila with him, Adeolu Salako For Appellant
AND
Prof. J. N. Mbadugha with him, Rita Campbel For Respondent
