UZEVIE OTUMBERE v. THE STATE
(2013)LCN/6596(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of December, 2013
CA/PH/324/2012
RATIO
WHETHER AN ACCUSED, IN A CRIMINAL PROCEEDING, HAS A DUTY TO ESTABLISH HIS INNOCENCE
An accused person, under our criminal procedure, has no duty to establish his innocence. As a matter of practice he however owes himself a duty to cast doubt in the case of the prosecution and/or discredit it in order to make it so unreliable that no reasonable court or tribunal could rely on it to convict him, a person accused of committing a criminal offence. where an accused person raises a defence of alibi, he has raised an absolute defence to the allegation against him. Alibi, as a defence, is founded on the premise that the accused, was not at the scene of crime at the material time and is truly innocent of the allegation. See BALOGUN v. A.G., OGUN STATE (2001) 4 NWLR [pt.733] 331; SOWEMIMO v. THE STATE (2004) 11 NWLR [pt.885] 515. A successful plea of the defence of alibi is a good defence that completely exonerates the accused as it establishes his innocence. The essence of the defence is that at the material time the accused, incapable of omnipresence as a human being, was at a location other than the scene of crime or locus criminis, and that the prosecution is proceeding against a wrong person. The defence, if successfully pleaded and sustained, renders the prosecution’s case incredible, as it casts serious doubt on the integrity of the prosecution’s case. In other words, in that case; there has been no proof of the guilt of the accused beyond reasonable doubt. It has the same effect on the prosecution’s case as it does when the prosecution’s case is riddled with material contradictions. PER EJEMBI EKO, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
UZEVIE OTUMBERE Appellant(s)
AND
THE STATE Respondent(s)
EJEMBI EKO, J.C.A.(Delivering the Leading Judgment): The Appellant and three others were jointly charged and tried at the High court of Bayelsa State (coram: I. Eradiri J) for the offences of criminal conspiracy and arson, respectively punishable under Sections 444 and 371 of the Criminal Code of Bayelsa State. The 1st, 2nd and 3rd accused persons were convicted for the two offences. They were each sentenced, without option of fine, to 4 year imprisonment for criminal conspiracy and 9 years imprisonment for the arson. The two terms were ordered to run concurrently. The three convicts have been in prison since their convictions and sentences on 5th December, 2011.
The 3rd accused/convict appealed his conviction on 9th February, 2012. His subsequent application for bail pending the determination of the appeal was refused.
The 4th accused person, charged and tried jointly with the Appellant, was discharged and acquitted on the two counts of criminal conspiracy and arson. The discharge of the 4th accused was premised on the evidence of the P.w.2, under cross-examination wherein he admitted that the 4th accused was not present at the scene of crime. This development was inspite of what appears to be a categorical evidence of the PW.3 fixing the 4th accused to the scene of crime. The PW.3 had testified that the 4th accused was the leader of the group that burnt the house of the Pw.1, the complainant. The Pw.3 testified that the 4th accused wore a red attire and that he was commanding the crowd that burnt PW.1’s house on 20th January, 2005.
The PW.2, like the PW.1, PW.3 and PW.4, had testified in their evidence-in-chief that they saw all the accused persons, including the 4th, at the scene of crime. The learned trial Judge had, in his judgment, dismissed the testimony of the PW1, as an eye witness, fixing all the accused persons to the scene of crime. I should thing and I so hold, that the acquittal of the 4th accused had some reciprocal impact on whatever was left of the testimonies of the eye witnesses. The testimonies at this juncture were left with diminished credibility.
The evidence of the PW.1 was dismissed at page 308 of the Record of Appeal as follows:
The PW.1, PW.2, PW.3 and PW.4 told the court they were eye witnesses to the crime that took place on that fateful night, and described the role played by some of the accused persons in burning the house.
Having regard to the evidence adduced by the prosecution, it is certain that the actual eye witnesses to the burning were the pw.2, pw.3 and pw.4. The PW1 was certainly not an eye witness to the fact since he was not in Agbura when the incident took place. He could only have known of the identities of the culprits from the source other than his personal knowledge.
This finding casts serious doubts on the evidence of the remaining eye witnesses who testified that they saw the 3rd and 4th accused in the crowd. By this finding, also, the PW.1 was a liar in his claim that he was an eye witness. His evidence, as an eye witness, had been so badly discredited and therefore unreliable. No reasonable court or tribunal therefore could rely on it for the conviction of the accused persons for the crimes alleged against them.
The Appellant, the 3rd accused person, is UZEVIE OTUMBERE. At page 201 of the Record the PW3 testified that the 3rd accused person, Uzevie, “was holding a dagger” that night. The PW.2, another eye witness believed by the trial court, testified at page 190 of the Records that he “saw Uzevie with a pistol”, and that “he is the 3rd accused”. The two pieces of evidence are mutually inconsistent.
The 3rd accused is also known as Tomvie, as it appears from the testimony of PW3, another acclaimed eye witness. No other witness, including the 3rd accused, ascribed that name to the 3rd accused. At pages 207 – 209 of the Records the Pw.3 testified: inter alia
I only saw the things that happened from where I was; not everything. I cannot say the exact time Ladina (PW.1) house was burnt. The burning lasted between 10 – 12 midnight. I saw Tomvie with a pistol. I did not bother about what he wore on that day. – – –
I put in my statement to the police that Tomvie was with a gun.
PW4 is another eyewitness. In his evidence at page 213 of the Record, the Pw.4 created an impression that because it was dark at the material time at the locus criminis he did not see what the 3rd accused, the appellant was carrying. His evidence at page 213 of the Record, as it concerns the appellant, is as follows:-
I also saw Uzevie. I did not see him with anything because the place was dark.
The same eye witness, who, because of the darkness at the place at the material time, could not see anything carried by the appellant; testified under cross-examination at page 214 of the Record that he “saw 3rd accused pour fuel on Ladina’s house on that day”. How he was able to see 3rd accused pour fuel on PW.1’s house in the pervading darkness remains a conjecture. It was not explained. Pw.4 seems to be a tainted witness with some ulterior motive or interest to serve other than true pursuit of the interest of justice.
In his extra judicial statement forming the proofs of evidence the Pw.1, who was not believed, posed as an eyewitness and claimed in his extra judicial statement that he saw the 3rd accused, the appellant, among the war-song chanting crowd as they approached his house and later set it ablaze.
The PW.2 in his statement at pages 10 – 13 of the Records gave no further details except the bare statement that the 3rd accused/appellant was in the crowd that burnt down the Pw.1’s house, and that when the crowd invaded the PW.1’s house, the Pw.1 was absent.
The Pw.3’s statement is at pages 13 – 16 of the Record. He mentioned the 3rd accused/appellant among the people who burnt Pw.1’s house on 20th January, 2005. He stated further:
These people used assorted types of guns and shoot here and there and as a result the people in the town ran away. Then the gang poured fuel into the house while some are breaking glasses of the house.
The PW.3 gave no details of anything the 3rd accused/appellant did in particular that day.
On his part, the Pw.4 stated in the statement at pages 16 – 17 that he saw the 3rd accused/appellant with a pistol. Pw’s 1, 2, 3 and 4 all seemed to have embellished their statements when they testified at the trial of the 3rd accused/appellant and three others. The 3rd accused pleaded alibi in his statement to the police. The alibi was not investigated or rebutted. However, it was dismissed. And the 3rd accused was convicted.
The 3rd accused, aggrieved by his conviction, filed his notice of appeal on 9th February 2012. The notice of appeal has four (4) grounds of appeal. The grounds, shorn of their particulars, are that
1. The trial court erred in law in convicting the Accused/Appellant in the face of his alibi which was not investigated by the police
2. The trial court misstated the facts and misapplied them wrongly when he state thus:
“even though he (3rd Accused) claimed to have been within Todieseme’s compound between the hours of 10 and 11pm on the night of the incident he failed to state or give particulars of his whereabouts between the hours of 8 – 10 pm which was the material time the incident or offences took place.
3. The trial court erred in law in convicting the 3rd Accused despite the contradictions and lapses in the evidence of the prosecution witnesses, concerning his purported involvement.
4. The verdict of the trial court is unreasonable and cannot be supported having regard to the evidence.
The trial court, by law, can only convict the appellant on the two count charges of criminal conspiracy and arson upon proof beyond reasonable doubt from the totality of the prosecution’s evidence. An accused person, under our criminal procedure, has no duty to establish his innocence. As a matter of practice he however owes himself a duty to cast doubt in the case of the prosecution and/or discredit it in order to make it so unreliable that no reasonable court or tribunal could rely on it to convict him, a person accused of committing a criminal offence. where an accused person raises a defence of alibi, he has raised an absolute defence to the allegation against him. Alibi, as a defence, is founded on the premise that the accused, was not at the scene of crime at the material time and is truly innocent of the allegation. See BALOGUN v. A.G., OGUN STATE (2001) 4 NWLR [pt.733] 331; SOWEMIMO v. THE STATE (2004) 11 NWLR [pt.885] 515. A successful plea of the defence of alibi is a good defence that completely exonerates the accused as it establishes his innocence. The essence of the defence is that at the material time the accused, incapable of omnipresence as a human being, was at a location other than the scene of crime or locus criminis, and that the prosecution is proceeding against a wrong person. The defence, if successfully pleaded and sustained, renders the prosecution’s case incredible, as it casts serious doubt on the integrity of the prosecution’s case. In other words, in that case; there has been no proof of the guilt of the accused beyond reasonable doubt. It has the same effect on the prosecution’s case as it does when the prosecution’s case is riddled with material contradictions.
From the four (4) grounds of appeal the appellant’s counsel formulated three (3) issues. The respondent, on the other hand, formulated two issues therefrom. The substance of the issues formulated on both sides is: whether the prosecution had proved the guilt of the 3rd accused person beyond reasonable doubt to warrant his conviction? That is the only issue in the appeal. All issues raised on alibi or contradictions are sub issues under the fundamental issue of proof beyond reasonable doubt.
I have painstakingly read the briefs exchanged and the Records of Appeal in this appeal.
The trial court, in my view, restated the law correctly, when; in the judgment, while considering the alibi set up by the 3rd accused/appellant, he stated that the accused who is setting up alibi must so plead the alibi at the earliest opportunity: R v. PATRICK MORAN (1909) 3 CR. App. R.25; and state the time, place and persons he was with at the material time: NJIOWUEMENI v. THE STATE (2001) FWLR [pt.55] 538 at 546. In the instant case there is no doubt that the 3rd accused/appellant, at the earliest opportunity, raised the defence of alibi in the statement, Exhibit .F’, he made to the police investigators.
The alibi raised in Exhibit ‘F’ is as follows –
I was arrested by police Agency because of a fight that happen in Agbura town which lead (sic) to burning of houses within January 2005. On that day, I just close from work so before get to village, there are people running out of the village, so I wasn’t even let to my house because of fear, therefore I have to stay at Todiesenimi’s their compound until at 10.00 pm to 11.00pm I see fire at Ladinah’s house, burning so I try to go and stay with Mr. Zachrayas and Koka until in the morning.
The accused/Appellant, in this statement Exhibit ‘F’, was stating here that
I. When he closed from his place of work on the day the pw.1’s house he noticed that there was a stampede and people were running out of the village, Agbura. He did not enter the village. He stopped at the outskirts.
II. He could not get to his house as a result.
III. Consequently, he had to stay or wait at Todiesenime’s house till between 10.00 and 11.00pm that day.
IV. While he was at Todiesenime’s compound he noticed that the fire was burning Ladinah’s (Pw.1’s) house.
V. Thereafter, and from Todiesenime’s compound he tried to go and stay with Mr. Zachraya [Zachariah] and Koka [Coker] till the following morning.
The 3rd Accused/Appellant testified, as Dw.4. His evidence is at pages 262 – 269 of the Record. His evidence that he stayed in Todiesenime’s compound after he returned from work, while the stampede was on, was unscathed notwithstanding the rigorous cross-examination of the DPP. He testified further, unscathed, that from Todiesenime’s compound he went to Zachariah’s house that night while the Pw.1’s house was burning. He further added that while the Pw.1’s house was burning he and other persons, some of them he named in his evidence, “never moved an inch from where we sat” and they “sat put” when they noticed “that there were arsonists in Agbura Community who were out to burn houses”.
To plead alibi the accused needed only to raise the defence at an earliest opportunity and giving sufficient particulars of his whereabouts at the material time to enable the prosecutor investigate and/or contradict him or confirm the alibi. The 3rd accused stated in his extra judicial statement, Exhibit’F’, that at the material time Pw.1’s house was set on fire he was in Todiesenime’s compound. In his unchallenged or un-discredited evidence he repeated the same assertion and further named the people he was with at the material time. The assertion in Exhibit ‘F was neither investigated nor contradicted. His evidence on oath remained unscathed in the face of the DPP’s thorough and rigorous cross-examination.
Which the learned trial Judge was right in his statement of the law that no burden is placed on the accused to prove his alibi or innocence; he seemed to have got it wrong on the facts when he stated subsequently, completely unsubstantiated, that because “it is clear that the [3rd accused] was present in Agbura” during the night of the incident”, his alibi was therefore unreliable. The learned trial Judge completely ignored the fact that the alibi of the 3rd accused was neither investigated nor disproved and that the 3rd accused denied ever getting to PW.1’s house. He also made no comment on the prosecutor’s dereliction in the whole saga. He had misdirected himself on the facts by his inept appreciation of the facts when he held at page 314 of the Record:
Even though he claimed to have been within Todieseinime’s compound between the hours of 10 and 11pm on the night of incident he failed to state or give particulars of his whereabouts between the hours of 8 – 10 pm which was the material time the incident or offence took place.
In the first place the fact remains undisputed that the 3rd Accused/Appellant was on that day in Todiesenime’s compound. In both his testimony and Exhibit ‘F’ he was consistent that after closing from work he went to Todieseinime’s compound and remained there until between 10.00 and 11.00pm that night. A Judge, conscious of his duty as a neutral umpire while evaluating the totality of the evidence in either criminal or civil matter, must never succumb to the urge to reconstruct the evidence and slant it to the prejudice of either party. Doing so, as the trial Judge in the instant case had done, will result in, and has indeed resulted in, a manifest miscarriage of substantial justice to the 3rd Accused/Appellant.
Where an accused person sets up the defence of alibi, his duty is not to prove it beyond reasonable doubt or even on balance of probabilities. It is sufficient if he adduced evidence, or some evidence in proof thereof is elicited, in support of the alibi. See GACHI v. THE STATE (1965) NMLR 333; BENJAMIN ADEYEYE v. THE STATE (1968) NMLR [pt.1] 48. In this regard the tendering and the admission in evidence of the statement of the 3rd Accused/Appellant containing alibi is sufficient. The alibi was not disproved. The trial court held wrongly therefore that the alibi was not proved. It was. Facts not disputed are taken as established. The alibi was not disputed; therefore it should have taken as established.
It was submitted for the Appellant that the prosecution’s case, on which the Appellant was convicted, was full of contradictions; the law is that a verdict of guilty in a criminal offence is perverse if the verdict is given inspite of obvious contradictions: see ALFRED ONYEMENA V. THE STATE (1974) ALL NLR 532 at 530. The Supreme Court had stated in BOY MUKA v. THE STATE (1976) 10 SC 305 that it is from the totality of the evidence called in the case that the trial court must evaluate in order to determine whether the prosecution had proved its case beyond reasonable doubt. The prosecution’s ease must always remain a whole and untattered piece. In this case the totality of the prosecution’s case includes the Pw.1’s evidence. The Pw.1 had posed as an eye witness. He was found not to be one. He testified falsely that he saw the 3rd accused at the locus criminis.
The Pw.2, Pw.3 and pw.4 were all acclaimed eye witnesses. Each of them contradicted the other on the weapon the 3rd accused had at the scene of crime at the material time. The pw.2 said the 3rd accused had a pistol. The Pw.3 saw the 3rd accused with a dagger.
The Pw.4 was unable to see what weapon the 3rd accused had on him because the place was dark. As between Pw2 and Pw3 there is a contradiction as to the particular weapon the 3rd accused had while in the crowd that set fire to Pw.1’s house. The Pw.4’s account that because the place was dark he was unable to see what the 3rd accused was carrying that night contradicts Pw.2 and Pw.3 who testified that they, inspite of the darkness, saw what the 3rd accused carried. The pw.4’s evidence, again, suggests that the acclaimed eye witnesses could not, because of the darkness, properly see and identify the accused. All these facts and contradictions should cast reasonable doubt in the mind of the trial court. Where prosecution witnesses, eye witnesses for that matter, contradict each other as to what each of them saw the accused do and no explanation was furnished by each or any one of them for the contradictions; it is not safe for the court to pick and choose which one of them to believe or disbelieve. The court cannot accredit one and discredit the other and still go ahead to enter a verdict finding the accused guilty of the offence charged. See BOY MUKA v. STATE (supra); ALFRED ONYEMENA v. STATE (supra).In that kind of situation, the accused is perfunctorily entitled to be discharged and acquitted as there has been a failure of proof beyond reasonable doubt of the accused.
The conviction of the 3rd Accused/Appellant, inspite of his undisputed alibi, and inspite of material contradictions in the prosecution’s case cannot stand. I allow the appeal. The conviction and sentence of the 3rd Accused/Appellant in the case no YHC/10C/2007 on 5th December, 2011 are hereby set aside. In their place I enter an order of discharge and acquittal in favour of the 3rd Accused/appellant, and that shall be the order of the trial court.
MODUPE FASANMI, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother EJEMBI EKO J.C.A just delivered.
Where an accused person sets up the defence of alibi, it is sufficient if he pleads the defence at the earliest opportunity stating the time, place and person who were with him at the material time. See Njiowuwmeni v. The State (2001) F.W.L.R Part 55 page 538 at 546. Appellant raised the defence at the earliest opportunity in exhibit F. The defence was neither investigated nor contradicted.
For this reason and fuller reasons given in the lead judgment. I too allow the appeal, and abide by the consequential orders contained therein.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother Ejembi Eko, JCA and I am in agreement with his reasoning and conclusion.
I wish to say that in our system of Criminal justice, we employ the accusatorial as against the inquisitorial method of trying an accused person. The innocence of the accused is presumed until he is proved guilty by the prosecution. The standard of proof is that of proof beyond reasonable doubt and the burden of proof is all through on the prosecution not the accused. See Uso v. Commissioner of Police (1972) All NLR 825. That is why, when the accused sets up a valid defence of alibi, it is the duty of the prosecution to dismantle or down grade it and establish as required the guilt of the accused.
In this case the prosecution failed in its duty and the Lower Court’s duty is to return the verdict of not guilty.
I therefore align myself with the reasons advanced by my learned brother Ejembi Eko, JCA in the lead judgment and I allow this appeal. I also quash the conviction and sentence of the 3rd Accused/Appellant and I order him discharged and acquitted as ordered in the lead Judgment.
Appearances
T. M. Idhiarhi Esq.For Appellant
AND
A. N. Opokuma Esq.For Respondent
