SIMON MBAM v. THE STATE
(2016)LCN/8281(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of March, 2016
CA/E/471C/2014
RATIO
PRACTICE AND PROCEDURE: WHETHER THE FAILURE TO INVESTIGATE ALIBI IS FATAL TO THE PROSECUTION’S CASE
Generally failure to investigate Alibi is fatal to the prosecution’s case – AIGUOREGHIAN v. STATE (2004) 12 WRN, 25 @ 44. However, it does not always follow that once alibi is not investigated such fact is fatal to the prosecution’s case. – OHAZA & ANOR v. STATE 1990, ALL NLR 94. The law is trite that when an accused person pleads a special defence, the evidential burden lies on him. If he raised the special defence in his statement to the Police (as in the present case), the Police has a duty to investigate it. The accused person may also raise the special defence during his trial for the first time. In each case, unless the prosecution leads evidence in negation, or in rebuttal thereof beyond reasonable doubt, any doubt created in the mind of the Court must be resolved in favour of the accused. WAKALA v. STATE 1991, 8 NWLR (Pt. 211) 552 @ 562. per. RITA NOSAKHARE PEMU, J.C.A.
COURT: WHEN CAN THE COURT OF APPEAL MUST EXERCISE ITS POWERS BY REVIEWING THE FINDINGS OF THE TRIAL COURT
Where the Court fails to properly evaluate evidence on record, or erroneously does so, or the conclusion reached is not supported by the evidence on record, then the Court of Appeal must exercise its powers, by reviewing the findings and draw the appropriate inference from the proved facts. NEPA v. IHAMEJI 2002 11 NWLR (Pt. 778) 379 @ 427. per. RITA NOSAKHARE PEMU, J.C.A.
COURT: THE IMPLICATION OF A DECISION OF COURT BASED ON SUSPICION
A decision of Court based on suspicion and speculation is faulty. ARUFIBONE v. ITA (2004) 2 NWLR (Pt. 858) 590 @ 597; ACB PLC v. EMOSTRADE LTD (2002) 8 NWLR (Pt. 770) 501. per. RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
SIMON MBAM Appellant(s)
AND
THE STATE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice P. O. Elechi, delivered on the 23th of June, 2013 at the High Court of Justice Ebonyi State holden at Abakaliki.
In it, the Appellant and five others were convicted for Arson and were sentenced to seven years in prison – Pages 136-153 of the Record of Appeal.
The Appellant is dissatisfied with his conviction and has appealed same.
FACTS OF THE CASE IN A NUTSHELL
The Appellant SIMON MBAM and five others were arraigned before the Abakaliki High Court for the offence of Arson as they were alleged to have conspired to willfully and unlawfully set fire to the dwelling home of Michael Onyibe, on the 23rd of May 2011, and indeed set fire on the dwelling house.
In proof of its case, the Prosecution had called four witnesses and tendered seven (7) Exhibits, A, B, C, D, E, F and G respectively while the Appellant called fourteen witnesses and tendered four (4) Exhibits, B1, B, J and H respectively.
The Appellant had raised the defence of alibi which was rejected by the Court. The Appellant had also relied on
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Exhibit “D”, the statement of one Ugo Nwabaga, which buttressed the defence of alibi and which the trial Court also rejected.
The Appellant, in pursuing this Appeal filed a Notice of Appeal on the 19th of September 2013, encapsulating Two Grounds of Appeal – (Pages 154-157 of the Record of Appeal).
I deem it pertinent to reproduce the Grounds of Appeal.
GROUND ONE –
“The learned trial Judge erred in law when he dismissed the Case Alibi and part forward by the accused person in his defence in the charge of Arson made against the accused person”.
GROUND TWO –
“The learned trial Judge erred in law when he held without proof that the accused was the person that set fire on the properties notwithstanding the age long case of village authorizing that both parties accepted it exist, which metamorphosed”.
The Appellant filled his brief of argument on the 10th of October 2014, but same was deemed filed on the 28th of January 2016. It is settled by Sir Ejike Ezenwa.
The Respondent’s brief was filed on the 28th of January 2016, and same was deemed filed on that date. It is settled by Rt. Hon. Augustine N.
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Nwankwagu, Attorney-General Ebonyi State.
Pertinent to state that the Record of Appeal was compiled and transmitted to this Honourable Court on the 28th of January 2016, pursuant to a motion for extension of time to so do, filed on the 24th of July 2015 and granted on the 28th of January 2016, by this Honourable Court.
On the 28th of January, 2016, the parties adopted their respective briefs of argument.
The Appellant had distilled two ISSUES FOR DETERMINATION in his brief of argument. They are ?
“1) Whether the defence of alibi was adequately considered in view of the evidence before the trial Court.
2) Whether the prosecution discharged its burden of proving that the appellant willfully and unlawfully set fire to the dwelling house of Michael Oyibe beyond reasonable doubt”.
The Respondent, at page 3 of his brief of argument adopts the issues formulated for determination in this appeal, but adds an additional issue viz: –
“Whether the appellant can raise fresh issue on appeal without the leave of this Court”.
Arguing his Issue No. 1, the Appellant submits that in his testimony in Court of 6th May
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2011, (Page 123 of the Record of Appeal) he had stated that he was not in the village of the complainant on the day which the arson was allegedly committed.
He argues, citing the Supreme Court case of AIGUOREGHIAN v. STATE (2004) 3 NWLR (Pt. 866) pg. 367, that it is not for an accused person to prove his alibi, rather the onus is on the prosecution to disprove the alibi. That alibi, when put forward must be investigated, and failure of the prosecution to investigate the alibi, is fatal to the case of the prosecution.
He submits that there is no positive evidence which cancels the alibi raised by the Appellant.
He submits that the eye witnesses could not have positively identified the Appellant, because it was dark when the offence was allegedly committed.
It is the contention of the Appellant that the prosecution failed to produce and tender the statement of the Appellant on the 3rd of June 2011.
That the prosecution also failed to produce the statement of Ugo Nwogbaga, head of the vigilante men in Mgbo Agbaja village, (the complainants village), which statement was subsequently tendered by the Appellants Counsel as
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Exhibit H, on 26/3/13.
That there is no real evidence connecting the appellant to the crime.
He submits that contradictions or inconsistencies in the evidence of witnesses, which are material to the proof of the ingredients of a criminal offence, are fatal to the case against an accused person, citing ATIKA v. STATE (2010) 9 NWLR (Pt. 1199) 241 @ 252. And that the Court is duty bound to resolve any inconsistencies in the testimonies of prosecution witnesses in favour of the appellant.
He urges Court to resolve this issue in favour of the Appellant.
ISSUE NO. 2
The Appellant submits that to succeed in a charge for arson, the prosecution must prove the following beyond reasonable doubt viz: –
1) That fire was set to a building or structure.
2) That the fire was set by the accused persons.
3) That the accused persons set the fire unlawfully and
4) That the fire was set willfully – JAMANI v. STATE (2005) 21 WAN 191 – See Section 443 (a) of the Criminal Code Law Cap. 33 Vol. 1, Laws of Ebonyi State of Nigeria 2009.
He submits that failure of the prosecution to establish the guilt of the appellant
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beyond reasonable doubt, must lead to his discharge and acquittal.
He submits that in the instant case, the prosecution made a heavy weather at the fact that the 2nd accused person made a confessional statement indicting the Appellant, but he argues that this does not divest from the prosecution, the onus of proving his case beyond reasonable doubt.
He submits that the prosecution has failed to establish the essential ingredients of ARSON.
That PW4, the Investigating Police Officer, admitted under cross-examination, that he never visited the scene of crime to verify whether any arson took place to any building.
That 1D1-E only show photographs that a tyre, window cotton and a sack – like ceiling were burnt. That these do not tell a story of a building that was burnt.
He submits that the Court cannot speculate. That on the night of the incident which was 2:15 am of the 23rd of May 2011, there was no light in the village, and PW1 and PW2 did not tell the Court how they could identify that the Appellant was one of the culprits.
He submits that evidence of PW1 and PW2 is fraught with malice, as they have been engaged
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in an age long warfare with the Appellants, regarding land matter.
Referring to Exhibit H (statement of Ugo Nwogbaga ? the vigilant chief of Mgbo Abaja village) – he submits that the arrest and trial of the Appellant is based on the speculation and malicious allegation of the people of Mgbo Agbaja, which malicious allegation was transferred to PW1 and PW2, who subsequently pointed fingers at the same people.
The Respondent had argued that the defence of alibi was neither raised at the Police Station, nor during the trial in court, by the Appellant.
That the Appellant at the police station had in his statement, stated that on the 23rd of May, 2011, he was at Igbuhu Otuma. But in Court, he stated that on that date, he was at Ikeyi in his in-laws place.
That the Appellant did not promptly raise his alibi, neither did he furnish necessary particulars of the alibi.
Citing the Supreme Court case of ILODIGWE v. STATE (2012) 18 NWLR (Pt. 1331) 1, he submits that for a plea of alibi to be successful, the defence must show inter alia that –
a) The accused person was so separated by distance from the scene of crime that
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ordinarily, he could not have travelled from where he alleged he was to the scene of crime; or
b) Though the accused person was within a short distance to the scene of the crime, he was physically prevented from approaching the scene of the crime by an external force or by ill health as certified by a medical doctor.
Submits that the Appellant had failed to discharge this burden placed on him by the law.
Consequently, he submits, the burden cannot shift to the prosecution as to investigate alibi.
The Respondent submits that where there are eyewitnesses to the commission of the crime, who saw the accused at the scene of crime, the issue of alibi is of no consequence. Rather, the credibility of witnesses is what matters.
That the evidence of PW1 and PW2 fixed the Appellant to the scene of crime, both in their extrajudicial statements to the Police, and their evidence in Court.
On Issue No. 2, the Respondent submits that the prosecution had discharged its burden of proving that the Appellant willfully and unlawfully set fire to the dwelling house of Michael Onyibe, and it did so beyond reasonable doubt.
Submits
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that the evidence of PW1 and PW2 corroborated the extrajudicial statement of the Appellant – admitted as Exhibit “G”.
Submits that that CONFESSION alone is enough to secure a conviction even without corroboration, as long as the court is satisfied with the truth of the said confession.
He submits that the trial Court had believed the voluntariness of the extrajudicial confessional statement of the Appellant, and that suffices.
On the Issue of whether the Appellant can raise fresh issues on appeal without the leave of Court, it is the Respondents contention that during the trial at the Court below, the defence of alibi was not raised by the Appellant.
He also submits in another breath that the details or particulars of the alibi in his extrajudicial statements to the Police were not disclosed. That the defence Counsel only mentioned alibi perfunctorily in his final address on the 10th of June 2013, and not as an issue before the trial Court.
He submits that the Appellant cannot raise the issue of Alibi for the 1st time on Appeal, without the leave of Court having been sought and obtained.
That Issue No. 1 cannot
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stand as the Appellant did not raise or argue the defence of alibi at the Trial Court.
ISSUE NO. 1
“WHETHER THE DEFENCE OF ALIBI WAS ADEQUATELY CONSIDERED IN VIEW OF THE EVIDENCE BEFORE THE TRIAL COURT”.
In considering this issue, I deem it pertinent to do so in conjunction which Issue No. 3 formulated by the Respondent which is –
“WHETHER THE APPELLANT CAN RAISE FRESH ISSUE OF APPEAL WITHOUT THE LEAVE OF THIS COURT”.
This is because, the success of the Issue No. 3 formulated by the Respondent is predicated on whether Issue No. 1 formulated by the Appellant can stand.
The Appellant had made statement to the Police on the 31st of May 2011.
In the statement, he admitted having had problem with the Ndiebor Mgbo community, because they had hitherto besieged his village at Obegu Mgbo and destroyed their houses and farms. He had, together with some people agreed to retaliate. This was at a meeting. He however did not go further than this. And he took no part in the arson. – Page 32-33 of the Record of Appeal. He does not know anyone who took part in the arson.
In his statement to the Police, he stated inter
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alia ?
“? On that Sunday the 23/5/11, I was at Igbuhu Otuma”
Before that he stated
“I packed to Igbuhu Otuma neighbouring village with my family”.
PW4, Otuu Ojukwu, attached to SARS, Abakaliki Nigeria Police, State Police Headquarters, is the Investigating Police Officer. Under Cross-examination he said inter alia ?
“? I did not go to visit the place the accused persons alleged they went because they admitted being a part to the arrangements to attack the village”.
– Pages 116 of the Record of Appeal.
The Appellant testified as DW6 Pages 123-24 of the Record of Appeal. He did testify thus inter alia ?
“? The Ndiebor people imposed a levy and asked us to pay but we refused. They started beating us, destroying our things and carrying away our goats. They chased us out of our villages. I ran away and packed to my sister’s place at Ikeyi village. The name of my sister’s compound is Nwigwe Nwambam. It is about five years now since I ran to that place to take refuge. I was arrested at Abakaliki. On the 23/5/2011, I was at Ikeyi in my in-laws
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place?”.
The Appellant had said in his statement that he was at Igbuhu Otuma on the day of the incident.
In his testimony of 6th May 2013, he said ?
“On the 23/5/2011, I was at Ikeyi in my in-laws place”.
Wherever the Appellant had said he was on the date of the incident, other than the scene of crime, that constitutes ALIBI and the Police were obligated to investigate same at the earliest opportunity.
Generally failure to investigate Alibi is fatal to the prosecution’s case – AIGUOREGHIAN v. STATE (2004) 12 WRN, 25 @ 44. However, it does not always follow that once alibi is not investigated such fact is fatal to the prosecution’s case. – OHAZA & ANOR v. STATE 1990, ALL NLR 94. The law is trite that when an accused person pleads a special defence, the evidential burden lies on him. If he raised the special defence in his statement to the Police (as in the present case), the Police has a duty to investigate it. The accused person may also raise the special defence during his trial for the first time. In each case, unless the prosecution leads evidence in negation, or in rebuttal thereof
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beyond reasonable doubt, any doubt created in the mind of the Court must be resolved in favour of the accused. WAKALA v. STATE 1991, 8 NWLR (Pt. 211) 552 @ 562.
It is apparent that the Police failed to investigate the Alibi put up by the Appellant.
Yes, the Appellant was honest enough to admit that there had been a meeting to retaliate on the adversary village community, because of the damage done to their houses and property, but as regards the crime with which he was charged, the Appellant had stated at the earliest opportunity, in his statement to the Police, of 31/05/2011 that on the day of the alleged arson which is 23/05/2011 he was somewhere else i.e. Igbuhu Otuma village and the Police never investigated that. – See Pages 32-33 of the Record of Appeal.
The Court does not act on conjecture and speculation, but on concrete facts before it.
It is my candid view, that failure of the Police to investigate the alibi put up by the Appellant at the earliest opportunity is fatal to the prosecution’s case.
The argument of the Respondent that the Appellant only brought up the issue of Alibi at address stage is misconceived
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and I so hold.
We do not know whether Igbuhu Otuma (stated in the Appellants statement) is the same as Ikeyi (as testified in his evidence.) It is the place of the prosecution to have resolved this through cross-examination, but this they failed to do. The alibi put up by the Appellant, has not been controverted by any credible evidence. PW4, the Investigating Police Officer admitted that he did not investigate the ALIBI. – See page 116 of the Record of Appeal.
In his Judgment, the learned trial Judge had observed inter alia.
“This plea of alibi by the accused persons was never raised by the accused persons in their statement to the Police in Exhibit B. Surprisingly the issue raised its ugly head during trial by the accused persons calling witness to affirm their whereabout on the 23/5/2011”. Pages 146-147 of the Record of Appeal.
With respect, this view is misconceived as I find that the Appellant had raised the defence of Alibi at the earliest opportunity in his statement to the Police – Exhibit “G”. Where the Court fails to properly evaluate evidence on record, or erroneously does so, or the conclusion reached is not
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supported by the evidence on record, then the Court of Appeal must exercise its powers, by reviewing the findings and draw the appropriate inference from the proved facts.
NEPA v. IHAMEJI 2002 11 NWLR (Pt. 778) 379 @ 427.
I am of the view that the defence of Alibi put up by the Appellant, albeit considered by the trial Court, was done with gross misconception and I so hold. Moreso, DW8, John Nwigwe testified that on the day of the incident, the Appellant was in his house at Ndiebor Ishiagu. This contradiction should have been investigated by the Police. They did not.
Issue No 1 is therefore resolved in favour of the Appellant, and against the Respondent.
ISSUE NO. 2
WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILFULLY AND UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL OYIBE BEYOND REASONABLE DOUBT.
The charge for which the Appellant and 5 Ors were arraigned before the Abakaliki Division of the Ebonyi State High Court, has a 5 count charge of conspiracy to murder, attempted murder, conspiracy to commit Arson, Arson and grievous harm. – Pages 5-6 of the Record of Appeal.
?I
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had observed the following. Count 1 does not say who was conspired with to murder. Count 11 is an attempt to kill one Godwin Ofoke; Count 111 is conspiracy to commit arson. Count IV is for the offence of arson on the house of one Michael Oyibe. While Count V is for grievous harm to one Paul Nwegede.
While the name of the Appellant appear in all the counts, it is apparent that the learned trial Judge only pronounced on the Count for ARSON.
There is nothing on record to show whether the charge was amended.
In the introductory part of the Judgment of the Lower Court, he had this to say –
“The accused person, John Ota Ogbaga, Moses Nkwegu, Simon Mbam, Ugo Ovuoba, Mgbeleke Ovuoba and Mbam Chukwuma were charged on the 25/5/2012 for Arson contrary to Section 443 (a) of the Criminal Code Cap 33, Vol. 1, Laws of Ebonyi State 2009 in that on the 23/5/2011 at Mgbo Agbaja Abakaliki in the Abakaliki Judicial Division willfully and unlawfully set fire on the dwelling house of Michael Oyibe valued at N600,000.00 property of the said Michael Oyibe”.
At the end of the Judgment, the Court observed thus inter alia
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?
“Consequently, I hereby find them guilty as charged and convict them accordingly”.
To succeed in a charge for Arson under the Law i.e. Section 443 (a) of the Criminal Code Law, Cap 33 Vol. 1. Laws of Ebonyi State of Nigeria 2009, the following ingredients must be established and proved beyond reasonable doubt viz: –
a) That fire was set to a building or structure.
b) That the fire was set by the accused persons.
c) That the accused persons set the fire unlawfully.
d) That the fire was set willfully.
I am at a loss as to what structure was burnt, as the prosecution made a futile attempt to establish that a building was burnt. 1d1-E, really are pictures of rubber burnt part of a motorcycle, a window blind and a picture of a sack made ceiling. There is no exhibit showing any burnt structure or building.
PW4 Ojukwu Otuu, the Investigating Police Officer admitted under Cross-examination that he did not visit the scene of crime to find out what was burnt. Even in his examination in chief, he said he rushed to the scene at the village square where the villagers had arrested the 4th and 5th accused persons.
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? Pages 92-93 of the Record of Appeal.
The Court is left to speculate and the Court cannot speculate. It is for the prosecution to prove its case beyond reasonable doubt.
I find that the prosecution has not been able to establish that a “STRUCTURE” within the ambit and interpretation of the Law was burnt 1D1-E say nothing. No exhibits were tendered regarding that there was even arson. A decision of Court based on suspicion and speculation is faulty. ARUFIBONE v. ITA (2004) 2 NWLR (Pt. 858) 590 @ 597; ACB PLC v. EMOSTRADE LTD (2002) 8 NWLR (Pt. 770) 501.
Was the fire set by the Appellant? PW1 and PW2 were called and relied on by the prosecution as eyewitness to the alleged arson.
PW1 testified thus inter alia ?
“? On the 23/5/2011 at about 12:15, I heard a knock at my door. I know the accused persons as we are from the same village. After the knock I saw 1st, 3rd, 6th, 2nd, 5th and the 4th accused persons. I saw all of them with pump actions”. – Pages 83-86 of the Record of Appeal.
PW2 testified saying thus inter alia –
“? On the day of the incident i.e. 23/5/2011, I was sleeping
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in the house with my wife, I noticed wild fire burning in one of my neighbour’s compound i.e. PW1? when I reached the scene with a bucket of water, all the accused persons pointed a gun at me?”
PW1 did say ?
“It was the 2nd accused that soaked the shift with fuel while the 1st accused put light on it”.
He also said –
“I have never had problem with the accused persons before. I was not home before as to know the records of the accused persons but it was when they came to my house that I got to know them”. Pages 84-85 of the Record of Appeal.
Again he testified thus –
“I said in my statement that I saw Moses Nkwegu used the cloth outside to soak it in fuel and John Ota lit it”. – Page 85 of the Record of Appeal.
The Appellant’s name was never mentioned.
PW1 had said the incident took place at about 12:15 am (at night).
As rightly observed by the Appellant’s counsel, how was PW1 able to identify the accused persons moreso the Appellant at that time of the night? There is nothing to show that the place was well lit or not. If ever there was any arson to any building, the
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evidence of PW1 does not link the Appellant to the crime.
PW2 in his testimony had this to say inter alia ?
“I could not tell the hour of the day that I was attacked but I know that I was woken up from sleep as a result of the incident, but it is about 9:10 pm”. – Page 88 of the Record of Appeal.
With regard to TIMING, there is gross contradiction in PW1 and PW2’s evidence. This is because while PW1 said it was 12:15 am, PW2 said the incident took place at 9:10 pm.
Even if the incident took place at 9:10 pm, it is still dark, and how was PW2 able to identify the culprits? Was the place well lit, or dark? It is one for speculation as the prosecution failed to establish this fact. Pertinent to know that the incident took place in a village, where there little or not electricity at night.
Failure of the prosecution to establish that it was the Appellant who participated in the crime (in the light of the lack of evidence as to the lighting at the scene), makes it unnecessary for me to go on to consider the other ingredients in the crime of Arson i.e. whether the accused persons set the fire unlawfully, and whether they
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set the fire willfully.
The prosecution had left large lacunae in their trial and that lacunae cannot be filled by this Honourable Court.
It is for the prosecution to provide the nexus between the Appellant and the commission of the crime, and this it has failed to do.
Nothing connects the Appellant to the commission of the crime, either by way of conspiracy, or the main act and I so hold.
This issue is resolved in favour of the appellant and against the Respondent.
The Appeal succeeds and the conviction and sentence of the Appellant in the judgment of the Abakaliki High Court, presided over by Hon. Justice P. O. Elechi and delivered on the 28th of June 2013 in charge No. HAB/6C/2012 is hereby set aside. The Appellant Simon Mbam is hereby discharged and acquitted.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, NOSAKHARE PEMU, J.C.A. I agree with reasoning, conclusions and orders therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft the lead judgment prepared by my learned brother, RITA NOSAKHARE PEMU, JCA. The
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facts of the case and all the issues raised in this appeal are set out and examined therein. I therefore agree with the conclusion reached in the lead judgment that the appeal should succeed. I also allow the appeal and abide by the consequential orders made therein.
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Appearances
Ejike Ezenwa, Esq.For Appellant
AND
A. N. Nwankwagu, Esq. (Attorney-General, Ebonyi State0 with I. I. Alobu, Esq. (Director of Public Prosecution, Ministry of Justice, Abakaliki, Ebonyi State )and F. N. Nteoma, Esq. (Chief State Counsel, Ministry of Justice, Ebonyi State)For Respondent
