UGWU v. C.O.P
(2021)LCN/15754(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, November 25, 2021
CA/ABJ/CR/665/2020
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
VITALIS UGWU APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT ANY CONTRADICTION IN THE TESTIMONIES OF THE PROSECUTION WITNESS CAN VITIATE A CONVICTION
I have also perused the evidence of the Defence Witnesses and in particular the evidence of DW4, the Appellant, and I cannot see any contradiction or inconsistency in the testimonies of the Prosecution Witnesses. For any contradiction or inconsistency to be material, fundamental and to negative the case of the Prosecution, the contradiction or inconsistency must be materially significant to vitiate the conviction. In the case of HARUNA GALADIMA V. THE STATE (2018)13 NWLR (PT 1636) PAGE 351 AT 378 PARAGRAPHS D-F, the Supreme Court of Nigeria held thus:
“However, it is trite law that for inconsistency or contradiction in evidence to negatively affect its veracity, such inconsistency and contradiction must be materially significant as to affect negatively the overall case of the Prosecution otherwise such insignificant inconsistency or contradiction will be discountenanced by the Court. See THE STATE V. AZEEZ & ORS (2008)4 SC 188; DIBIE & 2 ORS V. THE STATE (2007)3 SC (PT 1) PAGE 176; STEPHEN JOHN & ANOR V. THE STATE (2011)18 NWLR 1278) PAGE 353.
In this case, I am unable to see any inconsistency or contradiction significantly material in the testimonies of the Prosecution Witnesses on the material fact in issue required to establish the charge against the Appellant Indeed, this Court has laid it down in several cases that the contradictions in the testimony of the Prosecution Witness that will weigh on the mind of the Court must be such as are fundamental to be material and to go to the root of the case to create a reasonable doubt in the mind of the Court.” See EZEIBEH V. THE STATE (1997) LPELR 1389 (SC). PER SENCHI, J.C.A.
THE DEFENCE OF ALIBI
‘Alibi’ is a Latin phrase which has been judicially defined in the case of TIRIMSIYU ADEBAYO V. THE STATE (2014)8 SCM 34 AT 54, PARAGRAPH B-C Per Ariwoola, JSC as follows:
“Alibi means when a person charged with an offence says that he was not at the scene of crime at the time the alleged offence was committed. That he was indeed somewhere else and therefore he was not the person who committed the offence.”
See also OKOSI V. THE STATE (1989)1 CLRN 29; AKUM AGBOOLA V. THE STATE (2013)8 SCM 157.
In other words, by the above judicial depiction and explanation, alibi simply means ‘elsewhere’. That is, it is a defence based on physical impossibility of a Defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time. It is the fact or state of having been elsewhere when an offence was committed. See KAREEM OLATINWO V. THE STATE (2013)4 SCM 178 AT 196. PER SENCHI, J.C.A.
THE POSITION OF LAW ON WHEN THE DEFENCE OF ALIBI IS TO BE RAISED
As a general rule, for the defence of alibi to avail the Defendant, it must have been raised timeously and preferably, raised in the extrajudicial statement of the Defendant/Appellant, or garnered from the tenor of the evidence placed before the Court. In the case of BELLO V. STATE (2018) LPELR 44408, this Court held per OWOADE, JCA at Page 48, Paragraph C thus: “As a matter of law, it is the bounden duty of an accused person to raise the defence of alibi timeously and or at the earliest available opportunity and usually on first contact with the Police. This is to enable the Police to carry out their own imperative duty of investigating such defence of alibi. Failure of an Accused to raise the defence of alibi timeously vitiates the defence.
See NWATURUOCHA V. THE STATE (2011)6 NWLR (PT 1242) PAGE 170; RASAKI V. THE STATE (2011)16 NWLR (PT 1273) PAGE 251 and ADEYEMI V. THE STATE (2011)5 NWLR (PT 1239) PAGE 1.
ELEMENTS TO ESTABLISH THE DEFENCE OF INSANITY
The question to ask is what is the effect of the failure of the Appellant to raise a defence until when the Prosecution closed its case, and for the first time in open Court?
In the case of OLAKUNLE V. STATE (2017) LPELR 48000, the Supreme Court of Nigeria held as follows:
“Section 135(3) of the Evidence Act, 2011 places evidential burden on the accused person to call evidence that casts reasonable doubt on the case of the Prosecution, when the latter had proved that the accused committed the offence. In exercise of that right, howbeit duty, the Appellant in his defence at the trial Court raised, for the first time, his alibi. This defence presupposes that the accused was somewhere at the material time the offence was allegedly committed at the locus criminis. The accused person is by law enjoined to raise the defence of alibi at the earliest opportunity and within a reasonable time to enable the Prosecution to investigate it with the view of confirming or disproving it. See LATEEF SADIKU V. THE STATE (2013) ALL FWLR (PT 702) PAGE 1720; UDO EBRE V THE STATE (2001) FWLR (PT 59) PAGE 1244 AT 1258-1259. PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja (Coram: A. M. TALBA, J) in Suit No. FCT/HC/G/15/CR/37/2006 delivered on 7th March, 2016.
The Appellant and two others were charged for the offences of Criminal Conspiracy and Culpable Homicide contrary to Sections 97 and 221 of the Penal Code Law of Northern Nigeria.
The Appellant and the 2nd Defendant on the 20th of November, 2006 pleaded not guilty to the two-count charge, and on the 3rd of March, 2008, trial commenced. The Prosecution called five witnesses and tendered exhibits that were admitted in evidence. The Appellant on the other hand testified as DW4 and called three more witnesses that testified on his behalf, and on the 2nd of March, 2015, the Appellant closed his defence.
The brief facts of this case is that the Appellant (1st Accused) was brought to Abuja by the deceased (Fidelis Ugwu) sometime in 1997. The Appellant stayed with the deceased and he was serving him as an apprentice in the business of selling engine oil at Gwagwa Abuja, wherein the Appellant served the deceased for a period of about ten (10) years. The deceased after the period of apprenticeship, settled the Appellant with the sum of N110,000.00 in the year 2004, for the Appellant to start his own business. The Appellant started his own business, and after about eight (8) months, the Appellant realized that he was not making profit, instead, he was having shortages from his sales. The Appellant therefore decided to visit a herbalist, one Onyebuchi Agbedo, the 2nd Defendant at Ezike, Enugu State. The herbalist, the 2nd Defendant told the Appellant that it was the deceased, Fidelis Ugwu, his former master that is responsible for taking his money from him. The herbalist (the 2nd Defendant) therefore told the Appellant to go and kill his former master, Fidelis Ugwu, and bring his head to him. The Appellant, in order to accomplish the mission given to him by the herbalist, contacted his friend, one Ifeanyi, and promised to give him the sum of N200,000.00. Consequently, the Appellant and his friend Ifeanyi visited the house of the deceased (Fidelis Ugwu) and they killed him, cut off his head and put it in a bag, after which the Appellant left for Enugu to deliver the head to the herbalist, while his friend Ifeanyi left for Lugbe.
The case of the Appellant on the other hand is that he never lived in Abuja, but that he stayed in Lagos, and that he was arrested and brought to Abuja by the police, based on the complaint of the Igwe in his village that the Appellant killed his brother. According to the Appellant, he has a land dispute with the Igwe and that was the reason the Igwe made such an allegation against him.
In its judgment delivered on 7th March, 2016, the trial Court held at pages 171-172 of the Record of Appeal as follows:-
“In the final analysis, I come to the conclusion based on the evidence before me that the 1st accused, Vitalis Ugwu and Ifeanyi, now at large did conspire and caused the death of Fidelis Ugwu. The 1st accused knew or have reasons to believe that the probable consequence of their act is death. I based my conclusion on the Confessional Statement of the 1st accused, Exhibits C and G. I do not lost sight of the fact that the 1st accused retracted his confession while giving evidence in Court. I do not believe that the 1st accused did not make any statement to the police. The confessional statements were endorsed by a Superior Police Officer. And I believe that a senior police officer cannot be made to endorse a confessional statement in a matter of life and death; if the accused never made the statement. More so the facts stated in the statements accredited to the 1st accused are highly detailed. It is just impossible for the IPO who is not a party to commission of the offence to concoct the detailed facts. He cannot know the facts stated therein. I also based my conclusion on the evidence of all the prosecution witnesses i.e. PW1, PW2, PW3, PW4 and PW5. Particularly PW3 whose evidence fixed the 1st accused to the scene of the crime.
I am therefore satisfied that the prosecution has established beyond reasonable doubt the guilt of the 1st accused, Vitalis Ugwu and I hereby convict you as follows:-
“I convict you, Vitalis Ugwu for the offence of criminal conspiracy contrary to Section 97 of the Penal Code Law of Northern Nigeria.
I also convict you, Vitalis Ugwu for the offence of culpable homicide punishable with death in that you jointly with Ifeanyi, now at large, caused the death of Fidelis Ugwu when you knew or have reasons to believe that death is the probable consequence of your act contrary to Section 221(b) of the Penal Code Laws of Northern Nigeria.”
Then at page 176 of the Record of Appeal, the trial Court sentenced the Appellant to death by hanging.
Dissatisfied with the judgment of the trial Court, the Appellant on 14th April, 2020 filed a Notice of Appeal out of time, which was deemed properly filed and served on the 7th of September, 2020. Thus, by the Notice of Appeal filed on 14th April, 2020 but deemed as properly filed and served on 7th September, 2020, the Appellant raised four Grounds of Appeal (without their particulars) as follows:
GROUND 1
The learned trial Judge erred when he relied heavily on the purported confessional statement of the Appellant to convict him without taking into account the evidence of the Appellant’s witnesses.
GROUND 2
The learned trial Judge erred in law when he failed to pronounce his sentence in accordance with requirement of law.
GROUND 3
The learned trial Judge erred when he failed to consider the defence of insanity even though not raised by the accused person.
GROUND 4
The judgment is unreasonable and unwarranted and cannot be sustained having regard to the evidence led at the trial.
The Appellant’s Brief of Argument was filed on the 7th of September, 2020 and it was deemed properly filed and served on 25th November, 2020. The Respondent’s Brief of Argument was filed on 22nd September, 2020 and it was equally deemed properly filed and served by this Court on 25th November, 2020.
The Appellant’s Brief of Argument was settled by B. O. Nafagha Esq., and he submitted the following Issues for Determination:-
i) Whether in the light of the various contradictions in the purported confessional statement of the Appellant with his evidence in Court, the learned trial judge was right in relying heavily on the Confessional Statement to convict the Appellant?
ii) Whether the learned trial Judge was not wrong when he pronounced the death sentence on the Appellant contrary to the provision of the extant law?
iii) Whether it was right for the learned trial Judge to have relied on the Confessional Statement of the Appellant to convict him for murder without examining the defence of insanity throughout the judgment?
The Respondent’s Brief of Argument was settled by Simon Lough Esq., (an Assistant Commissioner of Police) and at paragraph 2.2 of the Respondent’s Brief of Argument, learned Counsel adopted the three issues for determination as formulated by the Appellant’s Counsel.
ARGUMENTS OF COUNSEL
APPELLANT’S ISSUE ONE (1)
At Paragraph 4.1 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted that in the light of the various contradictions in the purported Confessional Statement of the Appellant with his evidence in Court, the trial Court was wrong in relying heavily on the Confessional Statement to convict the Appellant. He submitted that there are serious contradictions in the purported Confessional Statements of the Appellant with his evidence in Court and he referred me to pages 115-119 of the Record of Appeal and the purported Confessional Statements of the Appellant admitted as Exhibits C and G, as well as the evidence of the Appellant in Court at pages 75-77 of the Record of Appeal.
At Paragraphs 4.2 and 4.3 of the Appellant’s Brief of Argument, learned Counsel referred the Court to the evidence of PW4 at page 50 of the Record of Appeal, that it was the Appellant’s father who invited the police to arrest the Appellant, while the Appellant at page 77 of the Record testified that it was the Chief of their village that came with police from Abuja to arrest him. According to Counsel, the evidence of the Appellant was corroborated with the testimony of DW3, the Appellant’s father, that the Appellant lives in Lagos and that it was the Igwe that brought him to Abuja. Learned Counsel to the Appellant posits that the evidence of DW1 and DW2 as contained in pages 70-71 of the Record of Appeal corroborated the evidence of DW3 that the Appellant lives in Lagos. Learned Counsel to the Appellant submitted that there is clear evidence of malice on the part of the Chief of the village of the Appellant, as a result of a land dispute, and that the assertion that it was the Chief (Igwe) that arrested the Appellant was never refuted. He therefore urged the Court to resolve Issue No. 1 in favour of the Appellant.
APPELLANT’S ISSUE TWO (2)
The learned Counsel to the Appellant submitted that Section 273 of the Criminal Procedure Code, LFN (Cap 491) provides specifically the manner sentence of death should be pronounced by the trial Court. He stated that the sentence pronounced by the trial Court at page 176 of the Record of Appeal was wrong in law. He contended that Section 273 of the CPC uses the word “shall” which is mandatory. He relied on the cases of WILLIAMS V. TINUBU (2014) ALL FWLR (Pt755) Pg 200 at 228 Paragraphs G-H; C.C.C.T G.S LTD V. EKPO (2008)6 NWLR (Pt.1083) Page 362 at 392 and AROMIRE V. AJOMAGBERIN (2011) ALL FWLR Pt. 586 Page 540 at 557 Paragraphs F-G.
Learned Counsel to the Appellant urged the Court to set aside the sentence, as the conviction and sentence was contrary to law.
APPELLANT’S ISSUE THREE (3)
On the 3rd Issue for Determination, learned Counsel to the Appellant posits that the trial Court erred in law when it refused and failed to consider the defence of insanity in favour of the Appellant throughout the judgment. He submitted that the learned trial Judge at page 116 rightly stated the position of the law and his reliance on the case of LAOYE V. STATE (1985)2 NWLR (Pt.10) Page 832(SC) but failed to consider all the defences available to the Appellant, especially the defence of insanity. He relied on the cases ofMOSES V. STATE (2003) FWLR (Pt.141) Page 1969.
In conclusion, learned Counsel urged the Court to resolve all the issues in favour of the Appellant, set aside the judgment of the trial Court and discharge and acquit the Appellant.
RESPONDENT’S ISSUE ONE (1)
On the 1st Issue for Determination, learned Counsel to the Respondent submitted that the Court can still rely on the Confessional Statement of an accused person even where the Confessional Statement contradicts or is inconsistent with his oral evidence in Court, because the inconsistency rule does not apply to the written Confessional Statement of an accused person. Learned Respondent’s Counsel referred this Court to the cases of YUSUF V. STATE (2019)10 NWLR (Pt 1680) Page 269 at 283; GBADAMOSI V. STATE (2019)4 NWLR (Pt 1661) page 29 at 50 and other judicial authorities.
He further submitted that the defence of alibi is usually raised at the time of making statement by the accused and not when the accused is giving his oral testimony in Court. Such alibi raised by an accused person in the course of his oral evidence goes to no issue since the prosecution may not have the opportunity of investigating same. He referred this Court to the case of OGUNO V. STATE (2012)7 NCC Page 449 at 455.
Learned Respondent’s counsel submitted that the appellant was pinned to the locus in quo or scene of crime by the evidence of PW3 contained at pages 44-46 of the Record of Appeal, and the evidence of PW3 was further corroborated by the detailed Confessional Statements of the Appellant which were admitted as Exhibits C and G contained at pages 152-153 of the Record of Appeal.
He urged the Court to hold that the trial Court was right in relying on the detailed Confessional Statement of the Appellant admitted as Exhibits C & G.
RESPONDENT’S ISSUE TWO (2)
On the 2nd issue, learned Counsel to the Respondent submitted that by the pronouncement of the trial Judge, he complied with the requirement of the law, and the failure to pronounce a sentence of death in the stipulated form is a mere irregularity which does not invalidate the judgment, provided it is clear from the record that a sentence of death was passed on conviction. He referred this Court to the case of OLOWOFOYEKU V. THE STATE (1984)5 SC 192.
He urged this Court to discountenance the Appellant’s submissions on issue 2 and the cases cited by the Appellant’s Counsel in support of this issue.
RESPONDENT’S ISSUE THREE (3)
Learned Counsel to the Respondent submitted that the Appellant did not raise a defence of insanity both in his Confessional Statements and oral testimony in Court. It is therefore erroneous for the Appellant Counsel to argue that the learned trial judge did not consider the defence of insanity raised by the Appellant in his Confessional Statements. He referred this Court to the oral testimony of the Appellant on pages 75-78 and his two Confessional Statements on Pages 115-119 of the Record of Appeal, stating that there is nowhere the Appellant said he ever suffered from mental illness or insanity for the Trial Court to consider as a defence for him.
He further submitted that any accused who intends to rely on the defence of insanity has a burden of proving same and he must raise it properly to enable the investigators to investigate its veracity. Learned Counsel to the Respondent referred this Court to the case of OKON V. STATE (2018)12 NWLR (Pt 1634) Page 558 at 567.
In conclusion, he urged this Court to affirm the conviction and sentence of the trial Court and dismiss the appeal of the Appellant.
RESOLUTION OF ISSUES
In this appeal, the issues for determination are those issues as set out in the Appellant’s brief of argument which the Respondent’s Counsel also adopted as his issues for determination of this appeal. This appeal will therefore be determined based on the issues submitted for determination by the Appellant.
ISSUE ONE (1)
At paragraphs 4.1 – 4.3 of the Appellant’s brief of argument, learned Counsel submitted on behalf of the Appellant to the effect that in the light of the various contradictions in the purported confessional statement of the Appellant with his evidence in Court, the trial Judge was wrong in relying heavily on the confessional statement of the Appellant to convict him. He referred this Court to pages 115-119 of the Record of Appeal, the purported confessional statements of the Appellant admitted as Exhibits C and G and the evidence of the Appellant in open Court contained at pages 75-78 of the Record of Appeal and contended that the oral testimony in open Court contradicts the confessional statements of the 1st Accused/Appellant.
The second contradiction pointed out by the Appellant’s Counsel in his brief of argument was the evidence of PW4 at page 50 of the Record of Appeal to the effect that it was the Appellant’s father who invited the police and the evidence of the 1st accused/Appellant at page 77 of the Record of Appeal that it was the Chief of the Appellant’s village that brought the police to arrest him in Isu Uzo and that the Appellant’s evidence was corroborated by the evidence of DW4 at page 73 of the Record of Appeal.
Now, I have gone through the Record of Appeal, especially the testimonies of the Prosecution Witnesses and the exhibits tendered in evidence particularly Exhibits C and G, the statements of the 1st accused/Appellant. I have equally looked and perused the evidence of PW3 and DW4, in order to ascertain the alleged contradictions.
Firstly, the law is that in criminal cases, the onus of proving the essential ingredients of the offence(s) in which a Defendant is standing trial squarely rest on the shoulders of the prosecution. And this is in line with Sections 135 (1) and (2) of the Evidence Act, 2011 (as amended) and Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). In other words, the prosecution must prove the charge against the 1st accused/Appellant beyond reasonable doubt before a conviction can be secured. See IBE USUOKALA V THE STATE (2020) LPELR 50819 (CA) and KAMILU DISU BISI V THE STATE (2021)12 NWLR (pt 1790) page 205 pages 208- 209.
For the offence of criminal conspiracy contrary to Section 97 of the Penal Code, the Prosecution must establish the essential ingredients to the effect that there was an agreement of the Defendants to carry out a criminal purpose or a lawful act by an unlawful means. See BISI V STATE (supra), FRN V MATAMAKI AND ANOR (2015)LPELR 25957 (CA) and KAYODE V STATE, (2016) LPELR 40028 (SC).
For the offence of culpable homicide contrary to Section 221 of the Penal Code, the prosecution must prove the essential ingredients of the offence as follows:-
(a) That death of human being took place;
(b) That such death was caused by the Defendant
(c) That the act of the Defendant that caused the death was done with the intention of causing death or that the Defendant knew that death would be the probable consequence of his act.
See HARUNA V A. G. FEDERATION, (2012) LPELR 7821 (SC), UBANI V STATE (2003) 18 NWLR (pt851) page 24, IGABELE V STATE (2006) 6 NWLR (pt 975) page 100 and ADAVA V STATE (2006) 9 NWLR (pt 984) page 155.
It is trite that the prosecution can prove the essential ingredients of the offence charge through:-
1. Direct eye witness(es) account
2. Confessional statement
3. Circumstantial evidence
See ABDULLAHI UMAR V THE STATE (2014) LPELR 23190 (SC).
Now the lower Court in its judgment after evaluating the evidence of the Prosecution Witnesses, the exhibits admitted in evidence and the testimonies of the Defence Witnesses made its findings at pages 159, 161 and 171 of the Record of Appeal as follows:
“In determining whether the accused intended to kill his victim the weapon used and the part of the body affected are major factors to be considered.
In the instant case, the prosecution evidence showed that the head of the deceased was removed with the neck. Exhibits A1 to A6 and B, and also exhibit E the medical report. And the evidence of PW3 and PW4, all clearly establish the fact that the head of the deceased was removed. The 1st accused had confessed that they cut the head of the deceased.
The prosecution had established beyond reasonable doubt that the 1st accused intended to kill his victim. And he knew that death will be the probable and not likely consequence of his act It is without any iota of doubt that whoever cuts off the head of his fellow human being, his intention is to kill him.”
While at page 161 of the Record of Appeal, the lower Court found as follows:
“The two statements in the instant case have been properly proved.
I am therefore satisfied that the prosecution had established beyond reasonable doubt the offence of criminal conspiracy against the 1st accused, Vitalis Ugwu and Ifeanyi now at large. The elements of the offence of conspiracy are embedded in the agreement of plot among the parties; a position that is really capable of direct proof. And so is deduced from the acts of the parties channeled or focused towards the realization of a common goal or mutual criminal purpose. See NJOVENS and ORS VS STATE (1973) 5 SC 17 and HARUNA & ORS VS STATE (1972) ALL NLR 738.”
Further at page 171 of the Record of Appeal, the lower Court held:
“In the final analysis, I come to the conclusion based on the evidence before me that the 1st accused, Vitalis Ugwu, and Ifeanyi now at large did conspire and caused the death of Fidelis Ugwu. The 1st accused knew or have reasons to believe that the probable consequence of their act is death. I base my conclusion on the confessional statements of the 1st Accused, Exhibits C and G.”
Then at pages 172 and 176 of the Record of Appeal, the 1st Accused was convicted and sentenced to death by hanging.
Now, the crux of the Appellant’s complaint as distilled by issue number one in his Brief of Argument is that there are serious contradictions in the purported Confessional Statements of the Appellant with his evidence in Court. In the statement of the 1st accused/Appellant, Exhibit C, the portion picked by the Appellant’s Counsel as contained at page 6 of the Record of Appeal, the Appellant states:
“I attended Isololo Primary school, Isi Uzo from 1991-1997.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
(See page 115 of the Record of Appeal as well)
Then in Exhibit G, at page 24 of the Record of Appeal, the 1st Accused/Appellant states thus:
“I started my Primary Education in the year 1991 and completed in the year 1997 at Ikeme Isolo Primary School in Nsuzo Ikeme Local Government Area of Enugu State.”
Then while giving his oral testimony in open Court before the lower Court, the 1st Accused/AppeIlant, under cross-examination, states as follows:
“I am from Ikeme Isi Uzo Local Government of Enugu State, I attended my Primary School at Ugoloke in Udemu Local Government Area of Enugu State.” (See pages 76 and 77 of the Record of Appeal).
And this is the bone of contention of the Appellant’s Counsel, that serious contradictions arose in the purported Confessional Statements of the Appellant with his evidence in Court, and thus, the learned trial Judge was wrong in relying heavily on the Confessional Statements to convict the Appellant.
On the other hand, the Respondent’s Counsel at Paragraph 3.2 and 3.3 of the Respondent’s Brief of Argument submitted to the effect that the learned trial Judge was right in relying heavily on Exhibits C and G to convict the Appellant because the inconsistency rule does not apply to the written Confessional Statement of an accused person.
By the records in this appeal before this Court, on 14l10l2008 and 29/10/2012, the two Confessional Statements of the 1st Accused/Appellant were admitted in evidence, despite objection by the Appellant through PWS 4 and 5. See pages 51 and 65 of the Record of Appeal, where the Trial Judge held at page 51 as follows:
“When an accused denies making a Confessional Statement, it is still admissible in evidence but it is the duty of the Court to decide on the weight with which to attach to the statement at the end of the trial. The statement is therefore admitted in evidence and marked Exhibit C.”
The trial Court further held at page 158 of the Record of Appeal as follows:
“On this note, I am satisfied that the two Confessional Statements, Exhibits C and G, had passed the test and I believe that they were made by the 1st accused voluntarily.”
From the Record of Appeal also, it appears there is no appeal on the interlocutory ruling of the trial Court at pages 51 and 65 of the Record of Appeal admitting the Confessional Statements of the Appellant as Exhibits C and G. See OSUAGWU V. THE STATE (2013) LPELR 22030 (CA), SCC (NIG) LTD V. ANA (2012)9 NWLR (PT. 1305) PAGE 213.
Thus, the findings of the learned trial Judge admitting the two statements as Exhibits C and G cannot be faulted and the lower Court was right to have relied on the two Confessional Statements of the Appellant because the law is that where the Confessional Statement is wholly retracted, the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial judge is entitled to admit the confession in evidence as something that had occurred in the course of investigation conducted by the police and by the finding of the trial Judge, after taking into account all the circumstances, the 1st Accused/Appellant did in fact make the Confessional Statements. See GODWIN IKPASA V. BENDEL STATE (1981)9 SC 7 AT 26-29, INUSA SAIDU V. THE STATE (1982)4 SC PAGE 41 AT 69; ALARAPE V. THE STATE (2001)2 SC 114 and OKECHUKWU MARAIRE V. THE STATE (2013) LPELR 20731 (CA).
In the case of IFEANYI UKONU OBI V. THE STATE (2016) LPELR 40543, this Court held as follows:
“Different considerations and principles of law govern admissibility of Confessional Statements disowned and a Confessional Statement objected to as involuntarily made;
where on the production of a confession it is challenged, on the ground that an accused person did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned Trial Judge himself. Whatever objection may be made by Counsel in such circumstances does not affect the admissibility of the statement, and therefore it should be admitted in evidence as the issue of voluntariliness or otherwise of the statement does not arise for consideration and decision.”
See per Udoma, JSC in GODWIN IKPASA V. BENDEL STATE (Supra).
Now, having found that the trial Judge was right in relying on the Confessional Statements, Exhibits C and G of the Appellant, the question is whether the extra-judicial statements, Exhibits C and G being inconsistent with his oral testimony at pages 76-77 of the Record of Appeal, the trial Judge was wrong in relying on the confessional statements of the Appellant? In the case of TAJUDEEN V. STATE (2017) LPELR-43159, this Court held as follows:
“The law generally is that where a witness gives evidence in Court which is inconsistent with a previous statement made by him (as in Exhibit P3) in respect of the same issue, the testimony is to be treated as unreliable, while the statement is not regarded as evidence upon which the Court can act See OLADEJO V. STATE (1987)3 NWLR (PT 61) PAGE 364 AT 427; STATE V. USOR (1972) NWLR PAGE 211. However, there is an exception to the above general rule, where the extrajudicial statement is a confession by the accused person (as in the instant case) who gives inconsistent oral testimony denying or another version of the alleged incident. The position is that the statement may conflict or be at variance with the evidence in Court, it will not be rejected but rather relied upon if it is positive, direct and in accord with other proved facts. Therefore, the law is that where an accused person makes an extra-judicial statement admitting the commission of the offence with which he is charged, the statement will still be considered or taken into account in determining his guilt, irrespective of the fact that he had resiled from that evidence in his testimony at the trial, by giving testimony in Court contrary to his previous evidence.”
See BASSEY V. STATE (2002)3-4 MJSC Page 77 at 194- 196.
In other words, where the confession is found by the Court to have been voluntarily and it is true, but inconsistent with the accused person’s evidence in Court, it is safe to convict. See QUEEN V. OBIASA (1962)2 SC NLR Page 402, MUMUNI V. STATE (1975)6 SC Page 79 and AKPAN V. STATE (1992)6 NWLR (PT 248) Page 439.
In this appeal therefore, I agree with the submission of the Respondent’s Counsel and I hold the view that the inconsistency rule does not apply to the extra-judicial Confessional Statements, Exhibits C and G of the 1st Accused/Appellant, and I so hold.
At Paragraphs 4.2 and 4.3 of the Appellant’s Brief of Argument, learned counsel to the Appellant referred me to the evidence of PW4 at page 50 of the Record of Appeal to the effect that it was the appellant’s father who invited the Police to arrest the 1st Accused (Appellant), while at page 77 of the Record of Appeal, the 1st accused/Appellant in his oral testimony as DW4 debunked the evidence of PW4 to the effect that it was the Chief of his village that brought the Police from Abuja to arrest him due to the land dispute he has with the Chief of his village.
I have gone through the entire testimonies of the Prosecution Witnesses, especially the evidence of PW4 – A.S.P. Tivkak Simon at pages 49-53, and at page 57 of the Record of Appeal. I have also perused the evidence of the Defence Witnesses and in particular the evidence of DW4, the Appellant, and I cannot see any contradiction or inconsistency in the testimonies of the Prosecution Witnesses. For any contradiction or inconsistency to be material, fundamental and to negative the case of the Prosecution, the contradiction or inconsistency must be materially significant to vitiate the conviction. In the case of HARUNA GALADIMA V. THE STATE (2018)13 NWLR (PT 1636) PAGE 351 AT 378 PARAGRAPHS D-F, the Supreme Court of Nigeria held thus:
“However, it is trite law that for inconsistency or contradiction in evidence to negatively affect its veracity, such inconsistency and contradiction must be materially significant as to affect negatively the overall case of the Prosecution otherwise such insignificant inconsistency or contradiction will be discountenanced by the Court. See THE STATE V. AZEEZ & ORS (2008)4 SC 188; DIBIE & 2 ORS V. THE STATE (2007)3 SC (PT 1) PAGE 176; STEPHEN JOHN & ANOR V. THE STATE (2011)18 NWLR 1278) PAGE 353.
In this case, I am unable to see any inconsistency or contradiction significantly material in the testimonies of the Prosecution Witnesses on the material fact in issue required to establish the charge against the Appellant Indeed, this Court has laid it down in several cases that the contradictions in the testimony of the Prosecution Witness that will weigh on the mind of the Court must be such as are fundamental to be material and to go to the root of the case to create a reasonable doubt in the mind of the Court.” See EZEIBEH V. THE STATE (1997) LPELR 1389 (SC).
It is interesting to note in this appeal that the learned Appellant’s Counsel in his Brief of Argument refers to a selected testimony of DW4 and that of PW4 to contend that there exists contradictions or inconsistency in the case of the Prosecution. DW4 or DWS 1, 2 and 3 are not witnesses for the Prosecution, but they are witnesses for the Defence, i.e. for the 1st accused (Appellant). In other words, for contradiction or inconsistency to occur and have a negative effect on the case of the Prosecution, such contradiction or inconsistency must occur in the testimonies of the Prosecution Witnesses.
In the instant appeal, the trial Court rightly evaluated the evidence of the Prosecution Witnesses as against the Defence Witnesses and then preferred the evidence of the Prosecution Witnesses and the documents admitted in evidence. The Appellant’s Counsel therefore got it wrong in his submissions at Paragraphs 4.1 and 4.2 of the Appellant’s Brief of Argument and thus, the submissions therein are hereby discountenanced.
On the question of alibi raised by the Appellant in his evidence in- chief as well as during cross-examination, and supported by the testimonies of DWS 1, 2 and 3, it is the contention of the Appellant that he was not at the scene of crime in Abuja and that he lives in Lagos.
‘Alibi’ is a Latin phrase which has been judicially defined in the case ofTIRIMSIYU ADEBAYO V. THE STATE (2014)8 SCM 34 AT 54, PARAGRAPH B-C Per Ariwoola, JSC as follows:
“Alibi means when a person charged with an offence says that he was not at the scene of crime at the time the alleged offence was committed. That he was indeed somewhere else and therefore he was not the person who committed the offence.”
See also OKOSI V. THE STATE (1989)1 CLRN 29; AKUM AGBOOLA V. THE STATE (2013)8 SCM 157.
In other words, by the above judicial depiction and explanation, alibi simply means ‘elsewhere’. That is, it is a defence based on physical impossibility of a Defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time. It is the fact or state of having been elsewhere when an offence was committed. See KAREEM OLATINWO V. THE STATE (2013)4 SCM 178 AT 196.
As a general rule, for the defence of alibi to avail the Defendant, it must have been raised timeously and preferably, raised in the extrajudicial statement of the Defendant/Appellant, or garnered from the tenor of the evidence placed before the Court. In the case of BELLO V. STATE (2018) LPELR 44408, this Court held per OWOADE, JCA at Page 48, Paragraph C thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“As a matter of law, it is the bounden duty of an accused person to raise the defence of alibi timeously and or at the earliest available opportunity and usually on first contact with the Police. This is to enable the Police to carry out their own imperative duty of investigating such defence of alibi. Failure of an Accused to raise the defence of alibi timeously vitiates the defence.
See NWATURUOCHA V. THE STATE (2011)6 NWLR (PT 1242) PAGE 170; RASAKI V. THE STATE (2011)16 NWLR (PT 1273) PAGE 251 and ADEYEMI V. THE STATE (2011)5 NWLR (PT 1239) PAGE 1.
In the instant appeal, I have gone through the confessional Statements, Exhibits C and G of the Appellant, and the 1st accused/Appellant never raised any defence of alibi that he was elsewhere at the time of the commission of the crime. There is also nothing to suggest that the Appellant ever informed the Police investigators that between the period in which the deceased was murdered and when he was arrested, he did not live in Abuja but in Lagos. In fact, up to the time the Prosecution closed its case at the lower Court, the Appellant never raised any issue of being elsewhere when the murder of the deceased took place.
Now, the issue of the defence of alibi arose for the first time in open Court when the Appellant (as DW4) and DWS 1 and 3 testified at the lower Court that the Appellant lives in Lagos. See the evidence of DW1 at page 70 of the Record of Appeal, evidence of DW3 at page 73 of the Record of Appeal and the evidence of the Appellant (DW4) at pages 75-78 of the Record of Appeal.
The question to ask is what is the effect of the failure of the Appellant to raise a defence until when the Prosecution closed its case, and for the first time in open Court?
In the case of OLAKUNLE V. STATE (2017) LPELR 48000, the Supreme Court of Nigeria held as follows:
“Section 135(3) of the Evidence Act, 2011 places evidential burden on the accused person to call evidence that casts reasonable doubt on the case of the Prosecution, when the latter had proved that the accused committed the offence. In exercise of that right, howbeit duty, the Appellant in his defence at the trial Court raised, for the first time, his alibi. This defence presupposes that the accused was somewhere at the material time the offence was allegedly committed at the locus criminis. The accused person is by law enjoined to raise the defence of alibi at the earliest opportunity and within a reasonable time to enable the Prosecution to investigate it with the view of confirming or disproving it. See LATEEF SADIKU V. THE STATE (2013) ALL FWLR (PT 702) PAGE 1720; UDO EBRE V THE STATE (2001) FWLR (PT 59) PAGE 1244 AT 1258-1259. A successful plea of alibi not only casts reasonable doubt on the case of the Prosecution against the acused person, it is a complete defence to the charge. In the instant case, the Appellant raised the alibi for the first time in the trial Court after the Prosecution had closed their case against him. The discredited evidence of PW2 had fixed him to the locus criminis and the alleged armed robbery. His confession in Exhibit AA2 had established that he committed the alleged armed robbery, Exhibit AA2 also corroborates the evidence ofPW3 that on 14th of October 2011, the Police Patrol Team intercepted the stolen car while it was being driven by the Appellant and or the control of himself and the 1st accused. The Appellant raised the alibi for the first time while he was being cross-examined. This piece of evidence is inconsistent with the Appellant’s previous statement, Exhibit AA2 which disproved the alibi. The alibi is clearly unreliable. The current state of the law on when an accused retracts or resiles from his previous confession or statement in writing is that where an accused person during trial retracts resiles from or denies the earlier statement he made in writing to the Police immediately after the event giving rise to the charge and arraignment, he owes it a duty to the Court to impeach his said earlier statement. See HASSAN V. THE STATE (2001)15 NWLR (PT 735) PAGE 184; NWACHUKWU V. THE STATE (2007) ALL FWLR (PT390) PAGE 1350. The integrity of Exhibit AA2, reinforced by the decision of the trial Court upon which the confession was admitted in evidence has not been impeached by the Appellant His belated alibi, a product of sheer prevarication cannot in the circumstances be given any serious credibility. The trial Court dismissed it as unavailing. The lower Court relying on NJOVENS V. STATE (1973) ALL NLR 441; ATTAH V. STATE (2010) ALL FWLR (PT 540) PAGE 1224; AFOLALU V. THE STATE (2010) ALL FWLR (PT 538) PAGE 812 held correctly in my view that where the Prosecution’s evidence has fixed the accused to the scene of crime and the commission of the alleged offence, the alibi pleaded has been effectively demolished or destroyed. The Prosecution had before the Appellant opened his defence through the evidence of PW2, PW3 and Exhibit AA2, fixed the Appellant to the scene of the armed robbery. The burden of casting reasonable doubt on the pieces of evidence had shifted to the Appellant to discharge by virtue of S.135(3) of the Evidence Act, 2011. The Appellant never successfully discharge that evidential burden.”
In this appeal, the defence of alibi raised by the Appellant cannot avail him. And more importantly, by the evidence of PW3 (at pages 44 46 of the Record of Appeal), and the testimonies of PWs 1, 2, 4 and 5, all the inference drawn from the whole history of this case point strongly to the commission of the crime by the 1st accused (Appellant) and his co-accused. The testimonies of the Prosecution Witnesses before the lower Court had fixed or pinned the Appellant to the scene of crime and nothing else has pointed to the contrary. Furthermore, by the confessional statements, Exhibits C and G of the 1st accused (Appellant), and the evidence of PWs 1, 2, 3, 4 and 5, especially the evidence of PWs 1, 3 and 5, the defence of alibi hurriedly put up in open Court by the Appellant has been effectively destroyed or demolished. Any drowning defendant can hang unto anything as a defence when he realizes that the case of the prosecution is closing up with him. And in this instant Appeal, if the 1st Accused/Appellant has a genuine defence of alibi, he ought to have raised it timeously, and this will enable the police to investigate the whereabouts of the accused.
Thus, the lower Court carried out a proper evaluation of the evidence of the Prosecution Witnesses and documents admitted in evidence, and he came to a conclusion (at page 169 of the Record of Appeal) as follows:
“The evidence of these witnesses had fixed the accused at the scene of crime. And it has proved that the 1st accused was in Abuja at all times. Therefore the plea of alibi is valueless, it is a deliberate ploy aimed at short-changing the Prosecution. The said defence cannot therefore avail the 1st accused.”
The learned trial Judge was right and this Court cannot interfere with such a conclusion, as it was based or drawn from the evidence of the Prosecution Witnesses. The first Issue for Determination is therefore resolved against the Appellant, and in favour of the Respondent.
ISSUE TWO (2)
On this issue, learned Counsel to the Appellant submitted at paragraphs 5.1 – 5.5 of his Brief of Argument to the effect that the Appellant was tried under the Criminal Procedure Code Act, LFN Cap 491 and that Section 273 of the Criminal Procedure Code provides the manner of sentence of death that should be pronounced by the Court. He submitted that the death sentence pronounced by the trial Judge at page 176 of the Record of Appeal was wrong in law and that it is compulsory and mandatory to pronounce the sentence in accordance with the statute because of the use of the word “shall”.
Section 273 of the Criminal Procedure Code provides as follows:
“When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”
Now, by the Records of this Appeal, on the 7th of March, 2016, the Appellant was convicted for the offences charged (See page 172 of the Record of Appeal). Then the trial Judge reserved sentence to 8th March, 2016, wherein the trial Judge sentenced the Appellant thus:
“In consequence therefore, I sentence you as follows:
ON COUNT ONE
I sentence you VITALIS UGWU to death by hanging – section 97(1) P.C.
ON COUNT TWO
I sentence you, VITALIS UGWU to death by hanging – section 221 P.C.
(See page 176 of the Record of Appeal).
The grouse of the Appellant is that the trial Judge erred in law for pronouncing the sentence contrary to Section 273 of the Criminal Procedure Code that provides that the Appellant “be hanged by the neck till he is dead” instead, the trial Judge pronounced the sentence thus:
“Death by Hanging”
This kind of issue arose in the case of JOSEPH EJELIKWU V. THE STATE (1993) LPELR 1062, where the Supreme Court of Nigeria was called upon to determine whether a judge is duty bound to pronounce the manner a sentence is to be carried out in law. The apex Court as per Karibi-White, JSC held:
“I consider the observation of Ademola C.J.N in GANO V. THE STATE (1968) NSCC 285 opposite also to the circumstances of this case. He said at page 266… it is the duty of the Judge under the law to pronounce the manner in which a sentence was to be carried out and failure to do so might raise apprehension that the execution could be carried out by another means as for example poisoning, drowning or any other means but as it is clear that the only mode of execution known to our law is by hanging by the neck till the convict is dead, we are unable to accept that any other mode of execution was contemplated by the Judge.”
The Supreme Court in considering Sections 196, 197, 198, 269, 273, 281 and 382 of the Criminal Procedure Code in the case of EJELIKWU V. THE STATE (supra) held further as follows:
“There are statutory provisions which ameliorate procedural omissions and irregularities not resulting in failure of justice. Section 381 provides that a finding or sentence pronounced shall not be deemed invalid, unless in the opinion of the appeal Court a failure of justice has been occasioned thereby.”
The Appellant in the instant appeal has not shown how the pronouncement of sentence at the trial Court has occasioned miscarriage of justice on his own part. The Appellant very much understands the offences for which he was charged, convicted and sentenced.
Thus, the Appellant, having failed to give this Court any tangible reason to tamper with the sentence of the lower Court, and the lower Court having rightly convicted the 1st accused/Appellant, I hold the view that the pronouncement of sentence by the trial Judge was an irregularity that cannot vitiate the conviction, and I so hold. The second issue is hereby resolved against the Appellant and in favour of the Respondent.
ISSUE THREE (3)
On this issue, the Appellant’s Counsel submitted that the learned trial Judge erred in law and occasioned serious miscarriage of justice when he failed to consider the defence of insanity in favour of the Appellant throughout the judgment.
Now, without ado, I agree with the submissions of the learned Counsel to the Respondent at paragraphs 3.28 – 3.34 of the Respondent’s Brief of Argument to the effect that the Appellant never raised the defence of insanity at the lower Court. I have perused Exhibits C and G, the confessional statements of the Appellant at pages 115-119 of the Record of Appeal, as well as the 1st accused/Appellant’s oral testimony as DW4 or evidence of his witnesses DWs 1, 2 and 3 whether such defence of insanity was ever raised. It is the duty of the Appellant to raise such a defence and establish the elements of the defence of insanity as rightly stated in the case of AKPAKPAN V. STATE (2019) LPELR-53132 where the Supreme Court of Nigeria held as follows:
“In fact, to establish the defence of insanity, the following elements are relevant for proof, namely:
(1) Evidence of past history of the accused/Appellant;
(2) Evidence in conviction of the accused immediately after the killing of his victim(s);
(3) Evidence of official of prison where he was kept in custody;
(4) Medical evidence, preferably from a psychiatric doctor;
(5) Evidence of his relation(s) on his behaviours and reputation of his sanity in the neighbourhood;
(6) Evidence of history of insanity in the accused’s family; and
(7) Such other facts which could assist the Court to arrive at a reasonable conclusion to establish that the burden placed on the accused is discharged.”
See THE STATE V. BABANGIDA JOHN (2013) NSCQR 1903 AT 1955; EJINIMA V. THE STATE (1991)6 NNLR (PT 200) PAGE 627.
None of these elements exist in the Appellant’s case before the lower Court to establish the defence of insanity that would warrant the learned trial Judge to consider same. In a nutshell, in both the Appellant’s confessional statements, Exhibits C and G, and his oral testimony in open Court, the Appellant never raised the defence of insanity at the lower Court.
The learned trial Judge was therefore right on firm pedestral to have ignored the defence raised by the Appellant’s Counsel in his Brief of Argument for the first time.
Thus, the third issue for determination is hereby resolved against the Appellant and in favour of the Respondent. Consequently therefore, this appeal lacks merit and it is accordingly dismissed. The judgment of the lower Court presided by A. M. Talba, J, delivered on 7th March, 2016 is hereby affirmed.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the draft of the judgment just delivered by my learned brother DANLAMI ZAMA SENCHI, JCA. My Lord has succinctly analysed the issues in this appeal and has perfectly resolved them against the Appellant and in favour of the Respondent. I have nothing more to add than to say that the appeal lacks merit. I agree with his reasons for dismissing the appeal, I too dismiss the same.
I affirm the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 7th March, 2016 by A.M Talba, J. in Suit No FCT/HC/G/15/CR/37/2006.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother DANLAMI ZAMA SENCHI, JCA.
I am in complete agreement with his reasoning and the conclusion that this appeal lacks merit. I adopt his reasoning as mine. I also do dismiss the appeal and I abide by the consequential order made therein.
Appearances:
B. O. Nafagha, Esq. For Appellant(s)
Simon Lough, Esq. (ACP)For Respondent(s)