LawCare Nigeria

Nigeria Legal Information & Law Reports

USMAN v. STATE (2021)

USMAN v. STATE

(2021)LCN/15816(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, September 01, 2021

CA/ABJ/CR/271/2020

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Between

SUNDAY USMAN APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW WHERE THE DEFENCE OF ALIBI IS PLEADED

It is true that the burden of proof in criminal cases never shifts, and rests solely on the shoulders of the prosecution. However, where the accused seeks to rely on alibi, the onus is on him to raise the issue at the earliest opportunity, that he was not at the scene of the crime but was elsewhere, where it would be impossible for him to have committed the crime with which he is charged. Alibi, in criminal law, means elsewhere in another place. It is a term used to express a defence to a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime with which he is charged, offers evidence to show that he was in another place at the time which is termed setting up an alibi. In IDEMUDIA V. STATE (2015) LPELR – 24835, OGUNBIYI J.S.C. at Pages 31 – 32 paragraph F held, “Alibi as a defence presupposes that the accused does not only claim that he never committed the offence alleged, but that he was not at all at the locus delict. The Black’s Law Dictionary Ninth Edition by Bryan A. Garner at page 84 defines alibi, a Latin word “elsewhere” in the following terms: –
“A defence based on the 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 …The fact or state of having been elsewhere when an offence was committed.”
When alibi is pleaded, the fact constituting the said alibi is one which is specifically within the knowledge of the Defendant. As such, the burden of proving that fact that is specially within his knowledge is on him, the pleader, in this case, the appellant, by virtue of Section 140 of the Evidence Act, 2011. For he who asserts alibi must prove it. Section 131 of the Evidence Act enjoins whoever desires any Court to give him judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts do in fact exist.
Now, to successfully plead or raise a defence of an alibi by an accused person in a criminal trial, he is duty bound to timeously raise it at the earliest stage during investigation. This is to enable the Police check its veracity. See EGBOMA V. STATE (2013) LPELR – 21358 (CA) PAGES 74 – 79 PARA A. The defence must be raised with full particulars, stating the exact place he was, the exact time he was there, the person or persons with whom he was or who saw him there. See CHRISTOPHER OKOSI V. STATE (1989) ALL NWLR 170. The accused person is in law saddled with the responsibility to adduce evidence in proof of the defence of alibi as it is within his peculiar knowledge. See AKPAN VS. THE STATE (1991) 5 SCNJ I or (1991) SC 1.
PER YAHAYA, J.C.A.

THE ESSENCE OF A DEFENCE OF ALIBI
The essence of a defence of alibi is that a person cannot normally be present in two different locations simultaneously. In other words, a man cannot be said to be at a different location while allegedly committing an offence at another location at the same time. Where, however, the facts of the case fixed an accused/appellant at the scene of crime as in the instant case, a defence of alibi cannot, in the circumstance be available to him. See ASUQUO V. STATE (2016) LPELR – 40597 (SC); PETER V. THE STATE (1997) 3 NWLR (PT. 496) 625; and MICHEAL HAUSA V. THE STATE(1994) 6 NWLR (PT. 350) 281 SC.
In this case, the placement of the appellant in relation to the said defence of alibi is not tenable by virtue of the fact that the evidence of PW1 and PW2 pins him to the locus criminis thereby rendering the alleged defence irrelevant and unavailable to appellant. See OMOTOLA & ORS V. STATE (2009) LPELR – 2663 (SC), OSUAGWU V. STATE (2013) LPELR – 19823 (SC).
PER YAHAYA, J.C.A.

INGREDIENTS OF THE OFFENCE OF CULPABALE HOMICIDE

What to look for in determining whether the accused person intended to commit culpable homicide includes the nature of the weapon used, the part of the body to which the weapon was used to inflict an injury on, and the extent of the proximity of the person inflicting the injury with the weapon. See BAMIDELE V. STATE (2019) LPELR – 46885 (CA), NOJEEM AKINOSI V. THE STATE (2017) LPELR – 42384 (CA), MOHAMMED V. THE STATE (2012) ALL FWLR (PT. 621) 1564 and MUHAMMED V. STATE (2018) LPELR – 46604 (CA). PER YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kogi State High Court sitting at Idah, delivered by Justice F. Ajayi on the 28th November, 2019 wherein the appellant was convicted, alongside three others for the offences of conspiracy, attempted culpable homicide, and voluntarily causing grievous hurt.

A brief statement of facts of this case are as follows:
The appellant with four other persons were arraigned at the trial Court on the 18th October, 2018 on a three count information for the offences of conspiracy, attempted culpable homicide, and voluntarily causing grievous hurt contrary to Sections 97, 229 and 248 of the Penal Code respectively. Thereafter, the appellant being the 2nd defendant, pleaded not guilty to the charge and the case proceeded to trial.

At the trial, the Prosecution, now respondent called a total of six witnesses, in proof of its case while the defendants testified for themselves, and additionally called in four witnesses including PW4, the Investigative Police Officer who had earlier testified for the prosecution.

The case of the prosecution is that on the 15th August, 2014, the appellant alongside the other defendants at the trial Court, armed with weapons, attacked PW1 on his farm at Oko Uchabedo thus causing him bodily harm. The appellant on the other hand raised the plea of alibi which was investigated and confirmed.

At the end of the trial, the trial Court disbelieved the alibi raised by the appellant and other defendants and found that the prosecution had proven the guilt of the appellant and the other defendants beyond reasonable doubt. The trial Court then convicted and sentenced the appellant and the co-defendants to various terms of imprisonment.

The appellant’s grouse is the rejection of the plea of alibi he raised by the trial Court. This is what has led to this appeal.

The appellant’s brief of argument which was settled by P.D. Abalaka was filed on the 3rd June, 2020 wherein he distilled a sole issue for determination:
Whether having regards to all the circumstances of this case and in particular the evidence adduced, the plea of alibi and the confirmation of same by the investigative Police Officer (IPO) and the several material contradictions in the evidence for the prosecution, the trial lower Court was not in error to have found/held that the case against the appellant was proved beyond reasonable doubt? Distilled from grounds 1, 2, 3, 4, and 5)

The respondent’s brief of argument was settled by H. O. Abdullahi, Director, Public Prosecution on the 6th July, 2020. In it, he also distilled a sole issue for determination vis:
Whether or not the prosecution proved its case beyond reasonable doubt to warrant the conviction and sentence of the appellant.

Counsel to the appellant also filed an appellant’s reply brief in response to the respondent on the 31st of August, 2020.

The appellant’s issue as distilled is apt in capturing the question posed to this honourable Court. I shall utilize it in resolving this appeal.

SOLE ISSUE FOR DETERMINATION
Whether having regards to all the circumstances of this case and in particular the evidence adduced, the plea of alibi and the confirmation of same by the investigative Police Officer (IPO) and the several material contradictions in the evidence for the prosecution, the trial lower Court was not in error to have found/held that the case against the appellant was proved beyond reasonable doubt? Distilled from grounds 1, 2, 3, 4, and 5)

It is submitted for the appellant that the trial Court was in error to have found in the face of glaring evidence to the contrary, that the prosecution had proved its case beyond reasonable doubt to warrant the conviction of the appellant and the other defendants at the trial. He added, relying on the cases of OJO V. THE STATE (1991) 1 NWLR (PT 168) 490 and OMOGODO V. THE STATE (1981) 5 SC5, that the burden of proof in criminal cases rests on the prosecution and it never shifts, the standard of which is proof beyond reasonable doubt.

Counsel to the appellant submitted that the prosecution in the instant case failed to discharge its burden of proving the guilt of the appellant beyond reasonable doubt.

Counsel submitted that on the plea of alibi, that the appellant as well as the other defendants promptly and properly raised the defence in their respective statements and gave evidence in their own defence in support of the alibi raised. Counsel also noted the testimony of DW1 (PW4) at pages 80 to 81 of the record where he stated that he investigated the alibi pleaded by the appellant and confirmed it to be true. He added that in the face of such evidence of confirmation of the alibi, it cannot be properly said that the prosecution had proved its case beyond reasonable doubt as required by law.

Counsel to the appellant relying on the case of ESANGBEDO V. STATE (1989) 4 NWLR (PT113) 57 AT 82 – 83, stated that the plea of alibi haven been raised at the earliest opportunity should have convinced the trial judge of the appellant’s innocence or at the very least raising a reasonable doubt which ought to have been resolved in the appellant’s favour; since the appellant also called as a witness the person with whom he was with (DW3) at the time of the alleged offence. See AGBANYI V. STATE (1995) 1 NWLR (PT 369) 1 AT 20.

It is the argument of counsel to the appellant, that the trial Court failed to properly evaluate the evidence on the plea of alibi set up on this case and misapprehended the onus on the appellant and his colleagues. He thus submitted that this failure on the part of the trial Court occasioned a miscarriage of justice. Counsel to the appellant also argued that in the trial Court’s judgment, no mention was made on the evidence of the Investigative Police Officer (IPO). He added relying on the cases of NWOSISI V. THE STATE 1976 10 NSCC 299 AT 302 UKWUNNENYI V. STATE (1989) 4 NWLR (PT 114) 131 AT 155 that such evidence should not have been disregarded or brushed aside by the trial Court. Counsel then urged us to set aside the finding of the trial Court and hold that the prosecution failed to prove the guilt of the appellant, thus entitling him to an acquittal as a defence of alibi has the far reaching effect of exculpating the defendant from complete criminal responsibility.

Counsel to the appellant also submitted that there exist material contradictions in the evidence for the prosecution which casts doubt on the credibility of the of the prosecution’s case. Counsel referred to evidence of PW1 and that of PW2 at pages 66 – 67 of the record where he said that after being stabbed, he started bleeding and then fell while the defendants ran away. Again on cross-examination, PW1 also stated that he became unconscious as a result of the knife injury. Counsel argued that if the PW1 had fallen and thus became unconscious, how then did PW2, who claims to be an eye witness ask the victim what had happened?

It is the position of counsel to the appellant that if the defendants ran away when PW1 fell and became unconscious, how then did PW2 get to the scene with the appellants still surrounding PW1, and how did he wake up from his unconscious state to relay to PW2 all that had happened?

Counsel to the appellant also pointed out that there was a discrepancy as to the date of the incident. He noted that the charge as contained in the information filed shows that the incident occurred on the 15th of July, 2014 – pages 1 – 3 of the record. But that at the commencement of the trial, the prosecution applied to amend the charge to change the date of the incident from the 15th July, 2014 to 14th August, 2014. Counsel added that the PW1 and PW2 insisted that the incident occurred on the 15th of August, 2014, while PW6 and PW5, the nurse who treated PW1 at the police clinic claimed that the treatment was administered on the 14th August, 2014 and issued a report to that effect, which was tendered by the prosecution and admitted into evidence by the Court. Counsel to the appellant submitted that although discrepancy in the date or timing of an offence may generally not be material in criminal trials, it is however material in this case, as it shows a material discrepancy between the charge and the evidence, which amounts to a material inconsistency in the case for the prosecution, thereby casting a shadow of doubt on the case presented by the prosecution.

It is also submitted for the appellant that the prosecution failed to prove the offence of attempted culpable homicide beyond reasonable doubt as required by law. He added that the trial Court was in error to have convicted the appellant on the charge of attempted culpable homicide when an essential ingredient of the offence was not proved as required by law. See ALABI V. STATE (1993) 7 NWLR (PT 307) 511, EDE V. FRN (2000) 18 WRNLR 13, KHAN V. State (1991) 2 NWLR (PT 172) 127, BAKARE V. State (1987) 1 NWLR (PT52) 579.

Counsel to the appellant having listed the ingredients of the offence argued that the 3rd ingredient which is the intention to cause death must be proved in order to sustain a conviction of attempted homicide. This is more so as an intention to cause grievous hurt, though sufficient to sustain a conviction for murder if death results, is not sufficient to sustain a conviction for attempted murder.  See QUEEN V. NWAUGOAGWU (1962) 2 NSCC 201, R V. ALBERT (1960) WRNLR 31, BOLAJI V. STATE (2009) LPELR -11901 (CA) AT 46 PARAS C- E.

Counsel argued that a proper evaluation of the evidence in this case would not show an actual intention to kill on the appellant’s part. He added that what can be inferred from the evidence and the surrounding circumstances would be an intention to cause grievous bodily hurt and not that of actually killing the victim.

Counsel to the appellant finally urged us to resolve this appeal in favour of the appellant and against the respondent, thereby setting aside the conviction and sentence of the appellant and to enter an order of acquittal in his favour.

On his part, counsel to the respondent submitted that to sustain a charge on attempted culpable homicide under Section 229 of the Penal Code, the prosecution is mandated to prove the ingredients. In proof of the ingredients, counsel stated that the prosecution called as witnesses, PW1 and PW2. He pointed out that PW1, the victim, knew all his attackers as they all live in the same community. That PW1 identified the attackers as well as the various roles they played in the attack.

Counsel to the respondent submitted that according to PW1, the appellant, who was the 2nd defendant at the trial Court, stabbed him with a knife on the head. That PW2 also testified that he ran to the scene of the crime where he found the victim, PW1 on the ground bleeding from a machete wound to the head. He also narrated how he met the appellants and the other co-accused all of whom he identified.

Counsel to the respondent argued that the evidence of PW5 shows the extent of the seriousness of the stab to PW1’s head. paragraph 6 at page 76 of the record. Counsel went on to note that the victim, PW1 was attacked and the seriousness of the wound to his head was not challenged at the trial by the appellant and the co-accused. This, counsel argued amounts to an admission of the truth the evidence adduced by the prosecution witnesses. See ALI V. STATE (2003) 3 ACLR 581 AT 595: STATE V. USMAN (2007) 5 ACLR 34: OKERE V. STATE (2001 ) 2 NWLR 697) P. 397. Counsel to the respondent submitted that the evidence of PW1 and PW2 showed that there was indeed an attempt on the life of PW1 and that it was the appellant and the co-accused that carried out the attacks. That PW1 was found in a pool of his own blood, and even bled while at the hospital where he fell into unconsciousness while receiving treatment. This, counsel argued proved that the 1st and 2nd ingredients of the offence had been proved beyond reasonable doubt.

On the 3rd ingredient, counsel to the respondent submitted that the question as to whether the appellant intended the death of the PW1 is a question of fact deducible from the circumstances of the case, and that no other logical reasoning can be reached other than that the appellant intended the death of PW1 as a consequence of stabbing him on the head or that indeed death would be the probable and not likely consequence of being stabbed on the head as such, the trial Court was right in its decision. See BAKURI V. STATE (1965) NWLR 163 AT 164, GARBA V. STATE (2001) 2 ACLR 213 AT 220 – 221. Counsel urged us to hold that all the mandatory elements of the offences under Section 97(1), 229 and 248 of the Penal Code were proved beyond reasonable doubt.

On the defence of alibi, counsel to the respondent argued that the defence cannot avail the appellant as the eye witness accounts of PW1 and PW2 pins the appellant and other co-accused to the scene of the crime. He relied on OMOTOLA V. STATE (2009) 3 KLR (PT. 264) P. 683 AT 697; DAGAYYA V. STATE (2006) 13 LRCN P. 397 on when the issue of alibi will fail.

Counsel submitted that the unchallenged evidence of PW1 and PW2 rendered the appellant’s alibi unsupportable. This, counsel argued was because DW1 who was also PW4 never said anything about the alibi and whether or not he had investigated it, when he was questioned by the prosecution and neither did the appellant’s counsel cross-examine him on the issue of alibi. Counsel noted that it was curious that the same defence that did not make alibi an issue when PW4 testified but subpoenaed him, solely to give evidence on his investigation of the appellant’s alibi.

Counsel to the respondent argued that the DW1’s failure to (a) record a statement from DW3 confirming the Appellant’s alibi, (b) state how the contact with DW3 was made, (c) to show any written record of the investigation of the alibi, and (d) state the date and time when he conducted the investigation rendered DW1’s investigation of the alibi porous and unbelievable. Counsel added that there is nothing to suggest that the DW1 investigated the alibi, let alone confirm it. Counsel then urged us to disbelieve the entire evidence of DW1.

Counsel also argued that it is the evidence of DW3 that there was a 30-minute window where he was not with the appellant and could not account for the whereabouts of the appellant. He added that the case of UKWUNNENYI V. STATE (SUPRA) relied on by the appellant is distinguishable from this case as the appellant’s plea did not in any material sense raise any doubt as to the presence of the appellant at the time and place of the offence. And that the trial Court was right to have rejected the defence of alibi.

Counsel to the respondent also submitted that there were no contradictions in the prosecution’s case as the account of PW1 and PW2 on the events that took place on that day were not challenged. And that what the appellant referred to as a contradiction on whether PW1 said that the attackers ran away before or after the arrival of PW2 is a mere discrepancy in the manner of narration by the witness. He relied on the case of AGBO V. STATE (2006) 25 NSCQR 137 AT 151 on when contradictions will be fatal to a prosecution’s case.

Similarly, on how PW1 who said he was unconscious was also able to relate to the PW2 his ordeal, counsel to the respondent submitted that neither PW1 nor PW2 in their testimony said that PW1 lost consciousness at the farm, but that PW1 did say, that he became unconscious as a result of the injury he suffered. Counsel noted that the only record of the appellant falling into unconsciousness was at the police clinic, and that is the only unconsciousness PW1 referred to under cross- examination.

On the discrepancy as to dates, counsel to the respondent submitted that the fact remains that a crime was committed, that the charge to which the appellant pled read “…on or about…”, and that the appellant was not misled as to the charge he pleaded to and stood trial. Counsel added that the prosecution is not under obligation to prove the specific date of the offence. See AKPA V. STATE (2007) 2 NWLR (PT. 1019) P. 500 AT 522 H – A. In conclusion, counsel to the respondent urged us to discountenance the appellant’s counsel’s submission as there are no contradictions whatsoever in the prosecution’s case and equally urged that we resolve the sole issue in favour of the respondent, against the appellant and uphold the decision of the trial Court.

In response to the respondent’s arguments, counsel to the appellant reiterated that the offences of conspiracy, attempted homicide, and causing grievous hurt were not proved against the appellant beyond reasonable doubt as required by law.

On the respondent’s assertion that the appellant failed to cross-examine PW1 and PW2, counsel to the appellant argued that the witnesses were cross-examined and the issue of the long standing land dispute between the families was raised. Counsel also submitted that the issue of alibi was raised in his statement to the police and gave evidence on it in his defence.

Counsel argued that the respondent’s contention that the intention to cause death could be presumed from the circumstances is completely misconceived, that the law is settled that in a charge of attempted culpable homicide, the intention to cause death cannot merely be presumed but proved and that it is only where death has occurred that such intention could be presumed.

Counsel to the appellant argued that the evidence of DW1 strengthened the defence of alibi set up by the appellant and that the trial Court ought to have acquitted him. He added that the timing referred to in the case of DAGAYYA V STATE (SUPRA) was that of the accused person’s whereabouts and not that of the time the alibi was investigated.

Counsel concluded that the discrepancy between dates in the charge and the evidence adduced at the trial were substantial and fatal to the prosecution’s case and that the case of AKPAN V. THE STATE (SUPRA) relied upon by the respondent is distinguishable from the facts and circumstances of this appeal. Counsel urged us to discountenance the respondent’s submissions and allow the appeal.

It is true that the burden of proof in criminal cases never shifts, and rests solely on the shoulders of the prosecution. However, where the accused seeks to rely on alibi, the onus is on him to raise the issue at the earliest opportunity, that he was not at the scene of the crime but was elsewhere, where it would be impossible for him to have committed the crime with which he is charged. Alibi, in criminal law, means elsewhere in another place. It is a term used to express a defence to a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime with which he is charged, offers evidence to show that he was in another place at the time which is termed setting up an alibi. In IDEMUDIA V. STATE (2015) LPELR – 24835, OGUNBIYI J.S.C. at Pages 31 – 32 paragraph F held, “Alibi as a defence presupposes that the accused does not only claim that he never committed the offence alleged, but that he was not at all at the locus delict. The Black’s Law Dictionary Ninth Edition by Bryan A. Garner at page 84 defines alibi, a Latin word “elsewhere” in the following terms: –
“A defence based on the 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 …The fact or state of having been elsewhere when an offence was committed.”
When alibi is pleaded, the fact constituting the said alibi is one which is specifically within the knowledge of the Defendant. As such, the burden of proving that fact that is specially within his knowledge is on him, the pleader, in this case, the appellant, by virtue of Section 140 of the Evidence Act, 2011. For he who asserts alibi must prove it. Section 131 of the Evidence Act enjoins whoever desires any Court to give him judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts do in fact exist.
Now, to successfully plead or raise a defence of an alibi by an accused person in a criminal trial, he is duty bound to timeously raise it at the earliest stage during investigation. This is to enable the Police check its veracity. See EGBOMA V. STATE (2013) LPELR – 21358 (CA) PAGES 74 – 79 PARA A. The defence must be raised with full particulars, stating the exact place he was, the exact time he was there, the person or persons with whom he was or who saw him there. See CHRISTOPHER OKOSI V. STATE (1989) ALL NWLR 170. The accused person is in law saddled with the responsibility to adduce evidence in proof of the defence of alibi as it is within his peculiar knowledge. See AKPAN VS. THE STATE (1991) 5 SCNJ I or (1991) SC 1.

In the instant case, the appellant did in fact raise the defence of alibi early in his statement to the police, which in the course of proceedings, was marked “Exhibit P2”. Therein, the appellant stated that on the 15th August, 2014, he was with one Chief John Okolo at the latter’s house when his wife along with two of his daughters met him, and complained about being beaten by one Ibrahim Acheje and Abdul Ibrahim. He stated that he thereafter went with his wife to the Attah Igala who advised him to go to the police. While at the police station, he was ordered to be locked up by the DPO when the Wada family members came in with Yahaya bleeding from the head. He further stated that he was not at home, as such he had nothing to do with what had happened to Yahaya. This version of events, or at least part of it was recounted by the appellant at page 82 of the record.

Learned counsel to the appellant submitted that in convicting the appellant, the trial Court failed to properly evaluate the evidence on the plea of alibi set up on this case and that in the judgment of the Court, no mention was made of the IPO’s findings when he investigated the alibi. This, counsel submitted further, occasioned a miscarriage of justice. This submission is not correct.

The learned trial judge considered the defence raised when he stated at page 93 of the record:
“… the defendants testified and called witnesses to show that they were not at the scene of the crime at the time of the offences alleged were committed…. The evidence adduced in support of the alibi have been summarized earlier in the judgment. Quite apart from the fact that the alibi raised for each of defendants were porous, as a matter of fact, and unconvincing, there is credible evidence from PW1 and PW2 which fixed the defendants on the spot. I believe the evidence of the prosecution witnesses and hold that the alibi when contrasted with the positive and direct evidence identifying the defendants is bound to fail.”

From the above, it shows that the trial judge did in fact evaluate the evidence led on alibi. Although the learned trial judge did not specifically refer to the evidence of DW1 in his findings, the fact that he accepted the evidence of PW1 and PW2 and rejected the evidence of DW1, shows that he had evaluated the evidence.

Now, it is in evidence that PW2 saw PW1 surrounded by the appellant and the other co-accused persons on the date of the incident at the farm, and he then proceeded to help PW1 to the Police Clinic. The evidence of PW1 and PW2 has not been challenged and stands accepted.

It is also in evidence that DW1 (IPO) who had earlier testified as PW4, recorded the statements of the appellant, wherein the appellant claimed that he was elsewhere at the time of the commission of the said offence. Now, what is curious to me is why the IPO testifying as PW4 did not state this fact. Also more worrying, is that none of the accused persons cross-examined the IPO on the issue of alibi but then thought it expedient to belatedly subpoena the IPO to give evidence on the alibi he investigated.

Also worthy of mention, is the testimony of DW3, who claimed to have conveyed the appellant to Chief John Okolo’s house at 8am on the 15th August, 2014. He also testified that he was not with the appellant between the hours of 9am to 10:30am and cannot therefore account for the appellant’s whereabouts. Therefore, this still does not show that the appellant was not at the scene of the crime at the material time stated by PW1 and PW2 whose evidence was accepted by the trial Court.

Indeed, if one is stoic about not having committed a crime, his actions will stay true to his defence. This was not the case at the trial Court. The appellant let an opportunity to bring to the fore the fact that he was elsewhere slide.

The essence of a defence of alibi is that a person cannot normally be present in two different locations simultaneously. In other words, a man cannot be said to be at a different location while allegedly committing an offence at another location at the same time. Where, however, the facts of the case fixed an accused/appellant at the scene of crime as in the instant case, a defence of alibi cannot, in the circumstance be available to him. See ASUQUO V. STATE (2016) LPELR – 40597 (SC); PETER V. THE STATE (1997) 3 NWLR (PT. 496) 625; and MICHEAL HAUSA V. THE STATE(1994) 6 NWLR (PT. 350) 281 SC.
In this case, the placement of the appellant in relation to the said defence of alibi is not tenable by virtue of the fact that the evidence of PW1 and PW2 pins him to the locus criminis thereby rendering the alleged defence irrelevant and unavailable to appellant. See OMOTOLA & ORS V. STATE (2009) LPELR – 2663 (SC), OSUAGWU V. STATE (2013) LPELR – 19823 (SC).

Now, in respect of the commission of the offence in every criminal case, the duty of the prosecution is to prove the elements of the offence beyond reasonable doubt in order to ground a conviction. See SHEIDU V. STATE (2010) LPELR – 3592 (SC); OBIDIKE V. STATE (2014) LPELR – 22590 (SC).

The appellant was charged under Sections 97(2), 229(1) and 248 of the Penal Code.
Section 97 provides:
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid, shall be punished with imprisonment for a term not exceeding six months or with fine, or with both.
Section 248 provides:
(1) Whoever, except in the case provided for by Section 244 of this Penal Code, voluntarily causes hurt by means of an instrument for shooting, stabbing or cutting or any instrument, which used as a weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of electricity or by means of a corrosive or explosive substance or by the administration of a poisonous or deleterious substance or by means of an animal, shall be punished with imprisonment for a term which may extend to three years or with fine or both.
Section 229(1) of the Penal Code provides:
“whoever does an act not resulting in death with such intention or knowledge and in such circumstances that if he by that act caused death, he would be guilty of culpable homicide punishable with death shall be punished with imprisonment for life or for any less term or with fine or with both.”
To establish the offence under Section 229 (1) of the Penal Code, the prosecution must necessarily prove the following that:
1. An act was done with the intention to cause death or with knowledge the death was probable consequence of the act;
2. The act did not cause death.

Similarly, to establish the offence under Section 248 of the Penal Code, the prosecution must prove:
1. The defendant caused bodily hurt or harm to the complainant;
2. The harm or hurt was caused with the intention or knowledge that the act would cause hurt;
3. The act was unprovoked; and
4. The hurt was caused by means of an instrument, substance or animal.

The black’s law dictionary (9th edition) page 146 defines “attempt” to commit an offence as the act or instance of making an effort to accomplish something, especially without success or an overt act that is done with the intent to commit a crime but that falls short of completing the crime.

In the instant case, the question is whether the act committed by the appellant on PW1 is of such a nature and severity as could cause the death of a human being i.e. PW1. It is the appellant’s contention that in a charge of attempted culpable homicide, the intention to cause death cannot merely be presumed, but that actual intention to cause death must be proved and that it is only when death has occurred that that such intention could be presumed.

Let me quickly say that there is evidence establishing the severity of the injury sustained by PW1, the photographs of the injury sustained and the medical report were tendered and the police medical personnel was also called as PW5 to give evidence of the nature and severity of the injury.

What to look for in determining whether the accused person intended to commit culpable homicide includes the nature of the weapon used, the part of the body to which the weapon was used to inflict an injury on, and the extent of the proximity of the person inflicting the injury with the weapon. See BAMIDELE V. STATE (2019) LPELR – 46885 (CA), NOJEEM AKINOSI V. THE STATE (2017) LPELR – 42384 (CA), MOHAMMED V. THE STATE (2012) ALL FWLR (PT. 621) 1564 and MUHAMMED V. STATE (2018) LPELR – 46604 (CA).

In the appeal before us, the evidence of PW1 is that he was at his farm when the defendants attacked him, that the weapon used by the Appellant in inflicting injury on him (PW1) was a machete, that the place where the injury was inflicted was his head, that blood gushed out from the head, that as a result, he became unconscious at the police clinic where he was rushed to by PW2 for treatment. This evidence remains unchallenged and uncontroverted. The lethal nature of the weapon used, a cutlass, the delicate part of the body inflicted with the injury, the head, and the aftermath of the injury which resulted in the victim falling down and thereafter becoming unconscious are all signs of the severity of the injury and are cumulatively, sufficient enough, to warrant a reasonable inference that the Appellant by the said act, attempted to cause the death of the victim, PW1.

Similarly, it is the evidence of PW2 that when he rushed to the scene of the incident after hearing PW1’s shouts, he met him on the ground, with blood oozing from a machete wound to the head. He saw the accused persons with weapons.

As such, I am in agreement with the learned trial judge where he held that:
“… I find as a fact that the injury or hurt inflicted with the intention to cause death or with the knowledge that death was probable consequence. Indeed, the intention of the assailants could not have been otherwise in view of the evidence that the defendants were armed with a gun and cudgels in addition to the machete used on PW1.
In my view, such arms could not have been intended for a carnival but for a vile and vicious expedition which could have ended in death but for the providential intervention of PW2.”

That said, I am of the opinion that all the ingredients necessary in proof of the offences against the appellant have been proved.

Counsel to the appellant has argued that there exist material contradictions in the evidence for the prosecution which casts doubt on the credibility of the of the prosecution’s case. He referred to evidence of PW1 and PW2 at pages 66 – 67. Counsel argued that if the PW1 had fallen and thus became unconscious, how then did PW2, who claims to be an eye witness ask the victim what had happened?

This is not the position of things but a narrative the appellant has decided to run with, which in the circumstances is not the true position of affairs in this case. A piece of evidence can be said to be contradictory where it asserts the opposite of what another piece of evidence asserts. See AKPAN V. STATE (1991) 3 NWLR (PT 182) 646 SC OCHEMAJE V. STATE (2008) 15 NWLR (PT 1109) 57 SC AND IDAGU V. STATE (2018) LPELR – 44343 (SC).

Having gone through the record, I do not find a case of contradiction let alone material contradictions in the evidence of PW1 and that of PW2. From the evidence on the record, PW1 said at page 66 of the record: ‘…… the 2nd defendant (appellant) brought out a knife and gave me a cut. I lost blood and was shouting until I fell down and the defendants ran away.” PW2 on his part testified that “…. I heard PW1 shouting and I rushed to PW1. I met PW1 on the ground with blood from machete wound on his head. I saw 5th defendant beside PW1 … I asked PW1 the person who gave him a cut. PW1 told me it was the 2nd defendant (appellant) who cut him while the others beat him……..”. There is no mention here of falling unconscious. However, on cross- examination, PW1 did say that he became unconscious because of the knife injury at page 67 of the record. This was corroborated by PW5 at page 76 of the record, where PW5 testified that while he was tending to the injuries of the victim (PW1), he PW1, fell into a coma and had to be in the clinic for observation. There is therefore no contradiction whatsoever as argued by the appellant.

Finally, on this issue, it is important to consider the issue of the amendment of the charge. Counsel to the appellant argued that the date contained in the information read 15th July, 2014 and upon the commencement of trial, the prosecution applied for it to be amended to the 14th of August, 2014, whereas PW1 and PW2 in their testimonies stated that the incident occurred on the 15th of August, 2014. Now, where the amendment to a charge is not one that has the effect of misleading the accused person on the offence with which he is charged, such a charge shall not be rendered invalid by virtue of said amendment. In MAMUDA V. KANO STATE (2014) LPELR – 24598 (CA), it was held that the significant consideration in a matter of amendment of a charge whether upon an application by the prosecution or by the judge suo motu is that no injustice or prejudice is thereby occasioned to the accused person.
I am of the opinion that the amendment of the charge to reflect the new date does not in any way affect the nature of the offence the appellant was charged with neither should it mislead the appellant. This is more so as the plea was taken after the amendment of the charge. See PRINCENT V. STATE (2002) 18 NWLR PT. 798 49. See also SAMUEL V. STATE 2018 LPELR – 49229 (CA). 

As regards PW1 and PW2 stating that the incident occurred on the 15th of August, 2014, in the case of UCHE V. STATE (2015) LPELR-249693 (SC), Niki Tobi JSC, was apt when he explained as follows:
“Contradiction definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue. Thus, the contradiction in the testimony of a witness, which will be fatal, must be substantial; minor discrepancies that do not affect the credibility of a witness may not be fatal.”
Again, the fact that there is a difference between the date stated in the charge and the prosecution witness is only a minor discrepancy. All persons refer to the same incident and nobody was misled. On the whole, I must restate that the trial Court judge reached the right decision and I do not in any way find it perverse or against the evidence on record. The sole issue for determination is hereby resolved in favour of the respondent and against the appellant. Consequently, this appeal has no merit and it is hereby dismissed. I affirm the judgment of the trial Court delivered on the 28th November, 2019 in Suit No: IDHC/23c/2018.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.

My learned brother has in an elaborate manner dealt with the sole issue generated in this appeal. I agree with the reasoning and the conclusion which I adopt as mine. I too, do dismiss this appeal for lacking in merit. I abide by the consequential order made therein.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

P.D. Abalaka For Appellant(s)

Ibrahim Sani Mohammed SAN.(Hon A.G. Kogi State) with him Habib Abdullahi DPP,MOJ and Manyam Otam PLO,MOJ Kogi For Respondent(s)