TYOM v. STATE
(2021)LCN/15682(CA)
In the Court of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, November 29, 2021
CA/YL/22C/21
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
TERHIME TYOM (Aka Abuja) APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE TIMEFRAME FOR THE DELIVERY OF COURT JUDGEMENT
The law is very much interested in the fair and just trial of anyone that is accused of committing a crime, as such a person is presumed innocent until he is proven guilty and convicted by a Court of competent jurisdiction. One of the many safeguards an Accused person enjoys as enshrined in the grundnorm of the land is the delivery of judgment within 90 days after the adoption of final written address. This is so as to ensure that the Judge is well abreast of the facts and evidence which arose during trial so as to reach the correct decision, especially with regards to recalling the demeanour of Witnesses.
To this end Section 294(1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
“(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The implication of the above is that failure to deliver a judgment within 90 days will not nullify the judgment unless the party complaining has suffered a miscarriage of justice by reason thereof. Thus only miscarriage of justice can render a judgment for non-delivery within 90 days invalid, which must be established on appeal by the party alleging same.
The Supreme Court in the case of AKOMA & ANOR v. OSENWOKWU & ORS (2014) LPELR-22885(SC)(Pp. 29-32, paras. F-A) per GALADIMA, J.S.C., held thus:
“Firstly, the fact that Section 294 (1) of the 1999 Constitution makes it mandatory for a Court to deliver its judgment within 90 days after final address, and that by Section 294 (5) of the same Constitution, a judgment will not be invalidated or nullified for non-compliance unless and until the Appellate Court considering such a complaint on appeal is fully satisfied that the appellant has shown that it had suffered a miscarriage of justice by such late delivery of judgment. Further, the fact that in determining whether a miscarriage of justice was occasioned due to inordinate delay, the emphasis is not the length of time simplicita, but on the effect it produced in the mind of the Court, such as if the delay is found to have obviously affected the Court’s perception, appreciation and evaluation of the case then this Court would readily interfere.”
See: ATUNGWU & ANOR V. OCHEKWU (2013) LPELR-20935(SC); LAROMEKE & ORS v. OMINI & ANOR (2018) LPELR-44152(CA); and SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323(CA). PER TUKUR, J.C.A.
THE DEFENCE OF ALIBI
Alibi means elsewhere. It is a defence available to an Accused Person who is claiming to have been physically absent from the scene of the crime’s commission (for a crime which requires physical presence to be committed) at the time the offence was committed, thus making it impossible for the Accused to have committed the act constituting part of the crime. This flows from basic logic, as an object cannot be in two different places at the same time.
The Supreme Court in line with the above succinctly defined alibi in the case of AYAN V. STATE (2013) LPELR-20932(SC) (P. 10, Paras. D-E) PER MUHAMMAD, J.S.C., thus:
“ALIBI, (a Latin word) is a specific legal term, according to Garner [A Dictionary of Modern Legal Usage, 2nd Edition, Oxford, 41] referring to the defence of having been at a place other than the scene of crime.”
See: ANIM & ORS v. FRN (2014) LPELR-23219(CA); and EGBUFOR v. STATE (2013) LPELR-20688(CA). PER TUKUR, J.C.A.
WHETHER OR NOT THE DEFENCE OF ALIBI CAN BE RAISED AT ANY STAGE OF PROCEEDINGS
As a legal defence, alibi may either be raised at the earliest stage during police investigation or during the trial of a case or both. When raised at the earliest opportunity, it behoves on the Police or other investigating agency in charge of the case to make appropriate investigation to either establish the veracity of the defence or disprove same. Failure to so investigate while not always fatal to the Prosecution’s case, is a missed opportunity to put the issue of whether or not alibi is available to the Accused to rest. This will definitely operate in favour of the Accused when the defence is raised at trial. When alibi is raised at trial for the first time, the onus to establish it is on the Accused, as it is based on facts which are within the Accused Person’s knowledge. The standard of proof is on balance of probability.
The Supreme Court in the case of NWATURUOCHA v. THE STATE (2011) LPELR-8119(SC) (Pp. 16-17 paras. E-C) per FABIYI, J.S.C., gave a comprehensive exposition of the legal defence of alibi thus:
“Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See: Yonor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113, Gachi v. The State (1973) 1 NWLR 331; and Odu & Anr v. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668. In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:- “There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.” I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution.”
See: EZEKWE v. STATE (2018) LPELR-44392(SC); MOHAMMED v. STATE (2015) LPELR-24397(SC); and OBASI v. STATE (2018) LPELR-44635(CA). PER TUKUR, J.C.A.
THE BURDEN OF PROOF IN CRIMINAL CASES
Section. 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The Supreme Court in the case ofONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case resides. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 paras A-C;Solola v. The State (2005) 5 (Pt. 1) 135.”
See: NNAJIOFOR v. PEOPLE OF LAGOS STATE (2015) LPELR 24666(CA); TOMETIM v. STATE (2014) LPELR-22788(CA); and ABBEY v. STATE (2017) LPELR-42358(SC). PER TUKUR, J.C.A.
WHETHER OR NOT THE PROSECUTION IS BOUND TO CALL EVERY PERSON LINKED TO AN OFFENCE BY PHYSICAL PRESENCE
The Supreme Court in the case of CHIDOZIE v. C.O.P (2018) LPELR-43602(SC) (Pp. 24-25, Paras. A-B) Per SANUSI, J.S.C. restated the law thus:
“It is a well settled principle of law, that the prosecution is not bound to call every person that was linked to the offence by physical presence or otherwise to give evidence what he perceived. One person who can testify to the actual commission of the crime and the other relevant ingredients has done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 of the Evidence Act. See Obue v State (1976) 2 SC 141; Sadau v State (1968) All NLR 124; The State v John Ogunbanjo & Anor (2001)12 NWLR (pt.678) 576; Shurumo vs The State (2010) 44 NSCQR 159. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. See Odili vs State(1977) 4 SC 1; Shurumo v The State (supra).”
See: ADEBOWALE v. STATE (2018) LPELR-46766(CA); STATE v. SULEIMAN & ORS (2018) LPELR-45636(CA); and GIKI v. STATE (2018) LPELR-43604(SC). PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State in SUIT NO: TRSJ/24C/2011 delivered on 6th June, 2019 by Honourable Justice Josephine Y. Tuktur CJ, wherein the Court convicted the Appellant of criminal conspiracy, armed robbery and voluntarily causing grievous hurt in committing robbery, contrary to the provisions of Sections 97(1), 298B and 300 of the Penal Code (Cap 98) Laws of Taraba State of Nigeria 1997 and sentenced to various terms of imprisonment and fine of N300,000 respectively.
The material facts of the case leading to this appeal is that the Respondent upon complaint and investigation by the Police, acting on the belief that the Appellant had conspired with others to commit robbery, brought an amended Information dated 31st October, 2011, against the Appellant, wherein the Appellant was charged along with others for the offences of: criminal conspiracy, attempted robbery, armed robbery, and voluntarily causing hurt during robbery.
The Appellant was duly arraigned and he pleaded not guilty to the Charges and trial commenced. Upon a full trial, the trial Court convicted the Appellant for the offences of criminal conspiracy under Section 97(1) of the Penal Code; the offence of armed robbery under Section 298(b) of the Penal Code and the offence of voluntarily causing grievous hurt in committing robbery punishable under Section 300 of the Penal Code.
Dissatisfied, the Appellant appealed the decision via a Notice of Appeal dated and filed on 16th March, 2020.
The Appellant’s Brief of Argument is dated 22nd June, 2021 and filed on 23rd June, 2021.
Appellant’s counsel formulated three issues for determination to wit:
1. Whether in the face of the provisions of Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the judgment of the lower Court is not a nullity? (Ground 1)
2. Whether the failure, neglect or refusal by the lower Court to consider and pronounce on the issues raised by the Appellant`s alibi, lack of proof of the charges against him and the issue of withholding evidence raised and argued before the lower Court by both parties but not considered nor pronounced upon in arriving at a decision in the case, did not constitute a denial of the Appellant’s right to fair hearing? (Ground 2)
3. Whether the conviction and sentence of the Appellant by the lower Court for the offences charged is supported by the evidence adduced at the trial before the lower Court? (Grounds 3 & 4)
The Respondent’s Brief of Argument is dated 26th July, 2021 and filed on 27th July, 2021.
Respondent’s counsel distilled two issues for determination thus:
1. Whether the Prosecution had proved the offences of Criminal Conspiracy, Armed Robbery, and voluntarily causing grievous hurt in committing Robbery punishable under Sections 97(1), 298(b) and 300 of the Penal Code Laws of Taraba State 1997, against the Appellant beyond reasonable doubt (Grounds 2, 3 & 4)
2. Whether the judgment delivered outside 90 days by the trial High Court was a nullity? (Ground 1)
A careful examination of the issues raised by both counsel and the facts of this appeal reveals that the issues presented by both counsel are substantially the same, they also represent the bone of controversy herein. I adopt the issues formulated by the Appellant for the purposes of determining the appeal.
ISSUE ONE:
WHETHER IN THE FACE OF THE PROVISIONS OF SECTION 294(1) AND (5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, AS AMENDED, THE JUDGMENT OF THE LOWER COURT IS NOT A NULLITY? (GROUND 1)
Learned counsel for the Appellant argued that the judgment of the lower Court ought to be declared a nullity by virtue of the provisions of Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, as the judgment of the Court was delivered on 6th June, 2019, a period of over 160 days after the adoption of final address by the parties on 19th December, 2018 and occasioned a miscarriage of justice.
Learned counsel submitted that the delay in the delivery of judgment by the trial Court must have affected the Court’s perception, appraisal and evaluation of the case as seen in serious misapprehension of facts including where the learned trial Judge did not recall the fact that the charge sheet had been amended with two names struck out, that is Luka Ikechukwu and Chukwudi Omerha in the amended charge of 31st October, 2011, but wrongfully relied on the initial charge dated 19th May, 2011. Counsel also pointed out that the delay in delivering the judgment caused the learned trial Judge to wrongly find that the PW2 saw the face of the Appellant along with other Accused, whereas the PW2 in his statement to the police (Exhibit B) stated that he recognised the Appellant by voice.
On the other hand, learned counsel for the Respondent argued that the learned trial Judge did not by reason of delivering judgment outside of the 90 days prescribed by the Constitution lost sight of the facts and evidence of the case. He posited that the lower Court in its judgment rightly identified the fact that the charge was amended and the seeming disparity as to whether the Pw2 identified the Appellant by voice or via facial recognition was based on the oral testimony of the PW2 who testified that he saw the Appellant.
He relied on: Section 294(1) and (5); and Akoma v. Osenwokwu (2014) 11 NWLR (Pt.1419) 462 at 488 paras A-B.
RESOLUTION OF ISSUE ONE
The law is very much interested in the fair and just trial of anyone that is accused of committing a crime, as such a person is presumed innocent until he is proven guilty and convicted by a Court of competent jurisdiction. One of the many safeguards an Accused person enjoys as enshrined in the grundnorm of the land is the delivery of judgment within 90 days after the adoption of final written address. This is so as to ensure that the Judge is well abreast of the facts and evidence which arose during trial so as to reach the correct decision, especially with regards to recalling the demeanour of Witnesses.
To this end Section 294(1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
“(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The implication of the above is that failure to deliver a judgment within 90 days will not nullify the judgment unless the party complaining has suffered a miscarriage of justice by reason thereof. Thus only miscarriage of justice can render a judgment for non-delivery within 90 days invalid, which must be established on appeal by the party alleging same.
The Supreme Court in the case of AKOMA & ANOR v. OSENWOKWU & ORS (2014) LPELR-22885(SC)(Pp. 29-32, paras. F-A) per GALADIMA, J.S.C., held thus:
“Firstly, the fact that Section 294 (1) of the 1999 Constitution makes it mandatory for a Court to deliver its judgment within 90 days after final address, and that by Section 294 (5) of the same Constitution, a judgment will not be invalidated or nullified for non-compliance unless and until the Appellate Court considering such a complaint on appeal is fully satisfied that the appellant has shown that it had suffered a miscarriage of justice by such late delivery of judgment. Further, the fact that in determining whether a miscarriage of justice was occasioned due to inordinate delay, the emphasis is not the length of time simplicita, but on the effect it produced in the mind of the Court, such as if the delay is found to have obviously affected the Court’s perception, appreciation and evaluation of the case then this Court would readily interfere.”
See: ATUNGWU & ANOR V. OCHEKWU (2013) LPELR-20935(SC); LAROMEKE & ORS v. OMINI & ANOR (2018) LPELR-44152(CA); and SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323(CA).
Miscarriage of justice is failure of justice. It connotes a situation wherein the result of a trial or appeal is not the logically sound and valid aggregate of the evidence led therein and the principles of law applicable to said evidence. The Apex Court reiterated this principle of law in the case of NWANKWOALA v. FRN (2018) LPELR-43891(SC) (P. 20, Paras. A-D) where per RHODES-VIVOUR, J.S.C., it held thus:
“Miscarriage of justice is a failure of justice. There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means failure of the Court to do justice.”
See: INTERDRILL (NIG) LTD & ANOR v. UBA Plc (2017) LPELR-41907(SC); OKE & ANOR V. MIMIKO & ORS.(2013) LPELR-21368(SC); and GBENEYEI & ORS v. ISIAYEI & ORS (2014) LPELR-23216(CA).
A careful examination of the judgment of the lower Court reveals that the learned trial Judge was abreast of the facts and evidence adduced at trial. With regards to the amendment of the charges, the learned trial Judge in the second page of his judgment clearly referred to the amendment. All other instances referred to by Appellant’s counsel do not show that the learned trial Judge had lost touch with the facts of the case. There is a difference between improper evaluation of evidence and losing touch of facts and evidence by reason of time. The later has not been proven in this instance and this issue is therefore resolved against the Appellant.
ISSUE TWO:
WHETHER THE FAILURE, NEGLECT OR REFUSAL BY THE LOWER COURT TO CONSIDER AND PRONOUNCE ON THE ISSUES RAISED BY THE APPELLANT’S ALIBI, LACK OF PROOF OF THE CHARGES AGAINST HIM AND THE ISSUE OF WITHHOLDING EVIDENCE RAISED AND ARGUED BEFORE THE LOWER COURT BY BOTH PARTIES BUT NOT CONSIDERED NOR PRONOUNCED UPON IN ARRIVING AT A DECISION IN THE CASE, DID NOT CONSTITUTE A DENIAL OF THE APPELLANT’S RIGHT TO FAIR HEARING? (GROUND 2)
Learned counsel for the Appellant argued that the facts contained in the Appellant’s statement to the Police: Exhibit I amounted to a clear case of alibi raised by the Appellant to the Police during investigation and the failure of the Police to investigate meant the Appellant ought to have been acquitted.
He relied on: Ogogovie v. State (2016) ALL FWLR (Pt.847) 425 at 463 paras E-F; and Sale v. State (2016) ALL FWLR (Pt822) 1619 at 1637, paras E-G.
Learned counsel further argued that the lower Court did not properly evaluate the evidence of both parties before reaching the conclusion it did, as the trial Court wrongfully failed to consider or pronounce on the defence of alibi raised by the Appellant; and the doctrine of withholding evidence which the Appellant presented to the trial Judge on the basis that the Respondent did not tender certain Exhibits.
He relied on: Ibrahim Shinfida v. Commissioner of Police (1970) NNLR 113 at 114; Duru v. Nwosu (1989) 4 NWLR (Pt113) 24 at 35, paras D-E; Uzuda v. Ebigah (2009) vol. 177 LRCN 52 at 71, paras P-EE.
In response, learned counsel for the Respondent argued that while the cases cited by the Appellant, that is Sale v. State (supra) and Ogogovie v. State (supra) represent good law, they are distinct from the facts of this appeal, as in this appeal, there was direct evidence fixing the Appellant at the scene of the alleged crime which in line with settled principles of law logically and physically demolishes the defence of alibi and removes the need for investigation by the Police.
He referred to the cases ofAdewumi v. The State (2015) 10 NWLR (Pt1521) 614; and Sowemimo v. The State (2004) 11 NWLR (Pt.885) 515.
Counsel submitted that contrary to the Appellant’s arguments, the Prosecution has discretion to call those Witnesses required to prove his case and the exercise of that discretion in the case at trial does not amount to withholding evidence under Section 167(d) of the Evidence Act, 2011.
He relied on: Okonofua v. The State (1981) 6-7 SC. P.1 @ 18; Inusa Saidu v. The State (1982) 4 SC p.49 @ 68-69; Hausa v. The State(1994) 6 NWLR (Pt.358) 281; and Aliyu v. The State (2013) NWLR (Pt1368) 403 at 426 paras C-D.
Learned counsel also posited that there was no need to investigate the defence of alibi raised by the Appellant as there was cogent evidence fixing the Appellant to the scene of the crime.
RESOLUTION OF ISSUE TWO
Alibi means elsewhere. It is a defence available to an Accused Person who is claiming to have been physically absent from the scene of the crime’s commission (for a crime which requires physical presence to be committed) at the time the offence was committed, thus making it impossible for the Accused to have committed the act constituting part of the crime. This flows from basic logic, as an object cannot be in two different places at the same time.
The Supreme Court in line with the above succinctly defined alibi in the case of AYAN V. STATE (2013) LPELR-20932(SC) (P. 10, Paras. D-E) PER MUHAMMAD, J.S.C., thus:
“ALIBI, (a Latin word) is a specific legal term, according to Garner [A Dictionary of Modern Legal Usage, 2nd Edition, Oxford, 41] referring to the defence of having been at a place other than the scene of crime.”
See: ANIM & ORS v. FRN (2014) LPELR-23219(CA); and EGBUFOR v. STATE (2013) LPELR-20688(CA).
As a legal defence, alibi may either be raised at the earliest stage during police investigation or during the trial of a case or both. When raised at the earliest opportunity, it behoves on the Police or other investigating agency in charge of the case to make appropriate investigation to either establish the veracity of the defence or disprove same. Failure to so investigate while not always fatal to the Prosecution’s case, is a missed opportunity to put the issue of whether or not alibi is available to the Accused to rest. This will definitely operate in favour of the Accused when the defence is raised at trial. When alibi is raised at trial for the first time, the onus to establish it is on the Accused, as it is based on facts which are within the Accused Person’s knowledge. The standard of proof is on balance of probability.
The Supreme Court in the case of NWATURUOCHA v. THE STATE (2011) LPELR-8119(SC) (Pp. 16-17 paras. E-C) per FABIYI, J.S.C., gave a comprehensive exposition of the legal defence of alibi thus:
“Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See: Yonor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113, Gachi v. The State (1973) 1 NWLR 331; and Odu & Anr v. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668. In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:- “There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.” I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution.”
See: EZEKWE v. STATE (2018) LPELR-44392(SC); MOHAMMED v. STATE (2015) LPELR-24397(SC); and OBASI v. STATE (2018) LPELR-44635(CA).
In these circumstances, there was first no investigation of the alibi raised by the Appellant by the Police, despite the fact that he raised the defence at the earliest opportunity. Exhibit I, the Appellant’s statement to the Police is very clear and quite concise. In it, Appellant clearly stated that due to two previous arrests by the Police, the Appellant decided to spend some time with his Aunt in another town. Appellant mentioned the name of his Aunt and the Town, yet this piece of crucial information was totally ignored by the Police. Even more detrimental to the Prosecution’s case is the fact that the Prosecution failed to unequivocally place the Appellant at the scene of the crime at the time of the crime’s commission. This Court is therefore constrained by law to hold that the Defence of alibi was established and avails to absolve the Appellant of guilt or involvement in the robbery of PW2.
This issue is therefore resolved in favour of the Appellant.
ISSUE THREE:
WHETHER THE CONVICTION AND SENTENCE OF THE APPELLANT BY THE LOWER COURT FOR THE OFFENCES CHARGED IS SUPPORTED BY THE EVIDENCE ADDUCED AT THE TRIAL BEFORE THE LOWER COURT? (GROUNDS 3 & 4)
Learned counsel for the Appellant argued that the Respondent at trial failed to prove the offence of conspiracy against the Appellant as the evidence before the lower Court does not reveal any agreement, between the Appellant and the other Accused Persons at trial to commit any offence.
He relied on: Section 96(1) of the Penal Code; Babarinde & Ors v. State (2013) LPELR-21896(SC) p.39, paras C-D; and Famuyiwa v. State (2017) LPELR-43836 (SC) p.29 paras B-C.
Learned counsel also argued that the Prosecution failed to prove the charge of robbery, with the evidence at trial failing to clearly and distinctly identify as one of the robbers as the testimony of PW2 which is the only link between the Appellant and the alleged robbery is unreliable, being filled with material contradictions which created doubt that ought to have been resolved in favour of the Appellant. Counsel sought to buttress the foregoing by stating that the PW2 in his statement to the Police shortly after the incidence (Exhibit B) stated that he recognised the voice of the Appellant as one of the Robbers who threatened to waste the PW2’s life and that after the Pw2 flashed his torchlight, he only recognised the 2nd and 6th Accused persons; that the same PW2 then testified in his examination in chief on 22nd May, 2012, a period of over one year and three months after making Exhibit B, that he saw the Appellant and the 2nd and 6th Accused Persons holding guns, and that the Appellant was the one who took his N270,000.00 but on cross-examination said he only knew the names of the 2nd Accused who was holding a long gun and doesn’t know the other two as he doesn’t operate with them.
He relied on: Section 298(b) of the Penal Code Cap 98 Laws of Taraba State, 1997; Nwaturuocha v. State (2011) LPELR-8119(SC) p.5-6, paras F-B; Amadi v. AG Imo State (2017) LPELR-42013 (SC) p.15. paras A-B; Ezemba v. Ibeneme & Anor (2004) LPELR-1205 (SC) p.74 paras B-C; Lawal v. State (2010) LPELR-4622 (CA) p.23 paras B-C; Attah v. State (2010) LPELR-597 (SC) p.40, paras C-D; and Bakare v. State (2017) LPELR-42772 (CA) p.25 paras C-D.
Counsel submitted that the fact that the Prosecution failed to prove that the Appellant participated in any robbery in the first place, which is a key element of the offence of voluntarily causing hurt in committing robbery meant that the charge must fail.
He referred to: Section 300 of the Penal Code Cap 98 Laws of Taraba State, 1997.
On the other hand, learned counsel for the Respondent argued that the testimony of the PW2, as seen in pages 80-83 of the record of appeal, helped establish the crime of criminal conspiracy against the Appellant.
He referred to the cases ofAbdullahi v. The State (2008) Vol 164 LRCN p.96 at 110; Salawu v. The State (2015) Vol 241 LRCN P.118 at 123, para I; Guma v. The State (2014) Vol 233 LRCN p.41 at 50 R.8; Sule v. The State (2009) Vol. 171 LRCN, p.1 at 13 para 13; Titus Oyediran & 5 Ors v. Republic (1967) NMLR 122 at 127; and Queen v. Enahoro (1965) NMLR 265.
Learned counsel for the Respondent also argued that the evidence of PW2 Obiora Ameadi, a victim of the robbery that occurred on the 8th day of August, 2010, during which one Ifeanyi the PW2’s brother was shot in both legs, sufficiently linked the Appellant to the robbery during which grievous hurt was committed, as he testified that he knew the Appellant and some of the other robbers before the incident as his customers and clearly stated that it was the Appellant who relieved him of N270,000.00, during the course of the robbery. Counsel posited that since the evidence of the PW2 is cogent, credible and uncontroverted, it is sufficient to justify a conviction.
He relied on the following: Sections 97(1), 298(b) and 300 of the Penal Code Laws of Taraba State 1997; Eke v. The State (2011) 3 NWLR (Pt1235) 589 SC at 606 paras A-B; Bello v. The State (2007) 10 NWLR (Pt.1043) 564; Salawu v. The State (2012) Vol. 203 LRCN 185 at 188 R.6; and Ekpenyong v. The State (1991) 6 NWLR (Pt.200) 683.
RESOLUTION OF ISSUE THREE
The offences for which the Appellant was charged revolves around robbery, that is criminal conspiracy contrary to Section 97(1) of the Penal Code, armed robbery contrary to Section 298 (b), and voluntarily causing hurt in committing robbery contrary to Section 300 of the Penal Code.
Counsel on both sides have correctly stated the applicable principles of law with regards to the duty of the Prosecution to prove every ingredient of an offence beyond reasonable doubt.
Section. 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The Supreme Court in the case ofONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case resides. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 paras A-C;Solola v. The State (2005) 5 (Pt. 1) 135.”
See: NNAJIOFOR v. PEOPLE OF LAGOS STATE (2015) LPELR 24666(CA); TOMETIM v. STATE (2014) LPELR-22788(CA); and ABBEY v. STATE (2017) LPELR-42358(SC).
When it comes to cases of armed robbery, it has been firmly established by a long line of authorities that in order to secure conviction for the serious offence of armed robbery, which carries the grievous punishment of death, every single element or ingredient of the offence must be proved beyond reasonable doubt.
The Supreme Court in the case of OPEYEMI v. STATE (2019) LPELR-48764(SC) (P. 25, Paras. C-F) Per KEKERE-EKUN, J.S.C., duly listed the ingredients of armed robbery based on a similar provision thus:
“The essential elements of the offence of armed robbery, which must be proved beyond reasonable doubt are: (a) That there was robbery or series of robberies; (b) That each robbery was an armed robbery, and (c) That the appellant was one of those who participated in the armed robbery. See: Bozin vs The State (1985) NWLR (Pt. 8) 465, Suberu vs The State NWLR (Pt.1197) 586: Olayinka vs The State (2007) 9 NWLR (Pt.1040) 561; Okoh vs The State (2014) 8 NWLR (Pt. 1410) 502.”
See: ETINOSA v. STATE (2019) LPELR-48325(CA); OSAGIE v. STATE (2019) LPELR-47827(CA); and OGUDO v. THE STATE (2011) LPELR-860(SC).
There is no controversy as to the fact that armed robbery occurred, as proven by the pictures of PW2 and his brother who were victims of the robbery, but the bone of contention is whether the Prosecution proved beyond reasonable doubt that the Appellant participated in the armed robbery. The case of the Prosecution and the conviction of the Appellant by the lower Court is hinged on the testimony of PW2, and while it is true that a single testimony of a Witness can secure conviction in these circumstances, such testimony must be cogent and unequivocal.
The Supreme Court in the case of CHIDOZIE v. C.O.P (2018) LPELR-43602(SC) (Pp. 24-25, Paras. A-B) Per SANUSI, J.S.C. restated the law thus:
“It is a well settled principle of law, that the prosecution is not bound to call every person that was linked to the offence by physical presence or otherwise to give evidence what he perceived. One person who can testify to the actual commission of the crime and the other relevant ingredients has done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 of the Evidence Act. See Obue v State (1976) 2 SC 141; Sadau v State (1968) All NLR 124; The State v John Ogunbanjo & Anor (2001)12 NWLR (pt.678) 576; Shurumo vs The State (2010) 44 NSCQR 159. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. See Odili vs State(1977) 4 SC 1; Shurumo v The State (supra).”
See: ADEBOWALE v. STATE (2018) LPELR-46766(CA); STATE v. SULEIMAN & ORS (2018) LPELR-45636(CA); and GIKI v. STATE (2018) LPELR-43604(SC).
The pertinent question that arises therefore, is whether the evidence of PW2 at trial is one that is cogent enough to secure the conviction of the Appellant and the answer in my view is in the negative. The statement which the PW2 gave to the Police at the early stage is different from his testimony in Court in material aspects, which is with regards to the method by which the PW2 identified the Appellant, that is: whether by voice or sight, thus his evidence cannot in my view be relied upon to establish the grievous allegations against the Appellant. More importantly, it cannot be categorically stated that the lower Court averred its mind to the contradictory nature of the PW2’s testimony and after due consideration decided to rely on same, as a careful consideration of that part of the lower Court’s judgment as contained in pages 256 and 257 of the records, reveal that the lower Court based the Appellant’s conviction on the PW2’s evidence in Court, without due consideration of his earlier statement to the Police.
See:JOHN OGBU & ANOR V. THE STATE (2007) LPELR-2289(SC); AKPA V. STATE (2007) 2 NWLR (PT. 1019) 500 AT 528 PARAS. D-G (CA); AND EDUENOH V. STATE (2019) LPELR-48345(CA).
The contradictory nature of PW2’s testimony, coupled with the defence of alibi raised by the Appellant at the very early stage of the case in his statement to the Police means that reasonable doubt as to whether the Appellant participated in the robbery of PW2 exists.
This issue is resolved in favour of the Appellant.
In summation I find the appeal meritorious and same is hereby allowed in part.
The judgment of the lower Court delivered on 6th June, 2019 in Suit No. TRSJ/24C/2011 wherein the Appellant was charged, convicted and sentenced to various terms of imprisonment and fines for the offences of Criminal Conspiracy, Armed Robbery voluntarily causing grievous hurt contrary to the provisions of Sections 97(1) 298B and 300 of the Penal Code (Cap 98) Laws of Taraba State of Nigeria 1997 is hereby set aside against the Appellant.
The Appellant is discharged and acquitted.
CHIDI NWAOMA UWA, J.C.A.: I read in advance, the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. My learned brother has adequately resolved the issues that arose in the appeal. I would add a few words for the sake of emphasis.
Where an accused person raises the issue of “Alibi” it is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. The defence is usually raised at the first possible opportunity by a suspect in response to a charge at the investigation stage to enable the police establish the truth or falsity of the allegation. See, UDE VS. STATE (2016) LPELR-40441 (SC) P. 49. PARA. B, OKOLO OCHEMAJE VS. THE STATE (2008) LPELR-2194 (SC), OKERE VS. IGP (2018) LPELR-44178 (CA) P. 25. PARAS. D-E and NWABUEZE & ORS. VS. THE STATE (1988) LPELR-2080 (SC) P. 15 PARS. B-D. In the present appeal, the Appellant raised his defence of “Alibi” early enough in his statement to the police, Exhibit I, having stated that he was at an Aunt’s house in another town when the offence was committed.
The police failed to investigate the Appellant’s alibi which is fatal in this case in that the police could not therefore ascertain whether the Appellant was truly at his aunt’s place on the day and at the time of the alleged robbery of the PW2. Further, there is no evidence to prove that the Appellant was at the scene of the incident.
It is settled law that where there is a conflict between the written statement made to the police by a witness and his oral evidence in Court, the trial Court ought to hold that the witness is unreliable and his evidence ought not to be relied upon. In the present case, the statement of the PW2 to the police in respect of how he identified the Appellant is contradictory in material facts. The PW2 made out that he recognized the Appellant through his voice and in his testimony in Court, stated that it was by sight/recognition. Where both sets of evidence from the PW2 are contradictory in material particulars, the trial Court cannot pick and choose which of the two is reliable and which is unreliable of what transpired at the scene. See, BOY VS. THE STATE (1976) 10 SC 305. SUNDAY VS. THE STATE (2010) 18 NWLR (PT. 1224) 223 at 241. OKEKE VS. STATE (2016) LPELR-40024 (CA) p. 22. PARAS. B-E and AMUSA VS. STATE (2001) LPELR-6953 (CA) PP. 15-16. PARAS. C – F.
The trial Court ought not to have utilized the evidence of the PW2 in Court to have convicted the Appellant.
For the fuller reasons given in the leading judgment, I also allow the appeal in part, I resolve issue one against the Appellant and issues two (2) and three (3) in favour of the Appellant.
In sum, the Appellant’s conviction and sentence are hereby set aside, instead the Appellant is discharged and acquitted.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother J. Y. TUKUR, JCA. I agree with the analysis, evaluation and conclusion reached by my learned brother particularly on issue 2 that deals with the defence of alibi, raised timeously by the appellant which the police failed to investigate and issue 3 that challenged the evidence adduced by the prosecution which my brother in the lead judgment held that it was not sufficient to support the conviction of the appellant for the offences he was charged with beyond reasonable doubt. I agree with and adopt the decision by my brother that this appeal is meritorious and ought to be allowed. I also allow this appeal, set aside the conviction and sentence of the appellant by the trial Court on 6th June, 2019. The appellant is hereby discharged and acquitted.
Appearances:
G.T. Ieave Esq. For Appellant(s)
Hamidu Audu, DPP, Taraba State and A. D. Mustapha Senior State Counsel For Respondent(s)