UZOMA EMETO v. THE STATE
(2018)LCN/12472(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/OW/263C/2012
RATIO
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“The law is trite on how to prove offence of armed robbery, namely that:
(1) That there was a robbery
(2) The robbers were armed on the operation and
(3) Appellant was one of the robbers
See Akwuobi Vs The State (2017) LRCN 143 at 178; (2016) LPELR 41389 (SC), where the Supreme Court held:
‘It is trite law that for the prosecution to establish the offence of armed robbery, it must ensure that the followings are proved to the satisfaction of the Court:
(a) That there was, in fact, a robbery.
(b) That the robbery was an armed robbery, that is, the robbers or at least one of them was armed
(c) That the accused person was the armed robber or one of them (armed robbers). See Bozin Vs State (1985) 2 NWLR (Pt.8) 465; Alabi Vs State (1993) 7 NWLR (Pt.307) 551; Olayinka Vs State (2007) 4 SC (Pt.1) 710; (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM 193.’ Per Ariwoola, JSC” PER ITA GEORGE MBABA, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT CAN ENTER INTO THE ARENA OF TRIAL
“A trial Court is precluded from resorting to his own brain waves or personal feelings to found his decision in a case. See Obi Vs A.G. Imo State (2014) LPELR 24280 CA:
‘A trial Court must not be seen to descend into the arena of conflict in a trial, to generate evidence or facts not canvassed or adduced by witness(es) or apparent on the face of the records before him, to decide a case. See the case of Theophilus Ajakaiye Vs The State (2015) 5 WRN 64; Ayoade Vs Spring Bank Plc (2014) 4 NWLR (Pt.1396) 93.
I think, before, a Court can express its disbelief of an evidence, where there is no Counter information to found that disbelief, the evidence, itself, must be completely unreliable, worthless, incredible and/or false, on the face of it, that no reasonable Court or tribunal can rely on it. See Shaibu Vs State (2017) LPELR 42100; Amadi Vs A.G. Imo State (2017) LPELR 42013 SC.'” PER ITA GEORGE MBABA, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“The law is trite that every defence raised by the accused person, including alibi, has to be investigated, no matter how stupid or silly it may sound or appear. See the case of Olaiya Vs The State (2010) LPELR 2559 (SC); (2010) 3 NWLR (Pt.1181) 423 SC; Salami Vs The State (1988) 3 NWLR (Pt.85) 670; Nwabueze Vs The State (1988) 4 NWLR (Pt.86) 16; Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92. See also Chukwunyere Vs The State (2017) LPELR ? 43725 (SC):
‘Simply put, the word alibi means ‘elsewhere’. Whenever accused persons defence to a criminal charge is alibi, he is simply saying that he was at another place at the time material to the charge. The defence is based on the physical impossibility of an accused guilt by placing him in a location other than the scene of the crime at the relevant time. See Blacks’ Law Dictionary, 9th Edition, page 84; Shehu Vs The State (2010) 8 NWLR (Pt.1195) 112; Olatinwo Vs The State (2013) LPELR 19979 SC; Ayan Vs The State (2013) LPELR 20932 SC; (2013) 15 NWLR (Pt.1376) 34; Idemudia Vs The State (2015) LPELR 24835 SC; Eyisi & Ors Vs The State (2000) LPELR 1186 SC ‘Whenever an accused person intends to rely for his defence, on alibi, the law is trite that he must raise it at the first possible opportunity in answer to the charge by the Police at the investigation stage to enable the truth and falsity of the allegation to be established by the Police. The accused must furnish the particulars of his alibi in full details to the Police’.” PER ITA GEORGE MBABA, J.C.A.
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
Between
UZOMA EMETOAppellant(s)
AND
THE STATERespondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
Appellant was charged along with three other persons with a single count of armed robbery, contrary to S.1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Vol. XXII of the Laws of the Federation of Nigeria, 1990, at the then Armed Robbery and Firearms Tribunal of Imo State. The case was later transferred to the regular High Court presided over by U.D. Ogwuruike J. In the course of trial, the then 1st accused person Ikechukwu Ezeji died and his name was struck out. Appellant became the 1st accused person.
At the close of trial, the learned trial Court discharged and acquitted the other 2 accused persons, but convicted the Appellant. That was on 28/5/2012, in Charge No. HOW/ART/2/99.
Appellant obtained the leave of this Court (Court of Appeal) on 29/1/13 to file the Notice and grounds of Appeal, which he did on 14/2/13. In the Notice of Appeal, Appellant disclosed 6 grounds of Appeal, including the omnibus ground. Appellant filed Brief of Argument on 04/11/2016, upon the Records of Appeal being deemed duly filed on 26/9/2016. In the Brief he donated six (6) Issues for the determination of the Appeal:
(1) Whether the prosecution disclosed armed robbery? (Ground 1)
(2) Whether prosecution discharged the onus of proof on it beyond all reasonable doubt? (Ground 2)
(3) Whether the prosecution made out any connection between Exhibits F – F3 and the Appellant? (Ground 3)
(4) Whether Exhibits A, B, C, D, E, G, and H were properly received in evidence before the trial Court? (Ground 4)
(5) Whether the fact of the Appellant’s detention by the Police ought to have been a ground for his conviction? (Ground 5)
(6) Whether the Court ought to have discharged and acquitted the Appellant upon finding 2nd and 3rd Accused persons not guilty? (Ground 6)
The Respondent filed its brief on 14/3/18, which was deemed duly filed on 15/3/18. They donated two Issues for the determination of the appeal, namely:
(1) Whether the prosecution, by admissible evidence, proved the offence of Armed Robbery against the Appellant, beyond reasonable doubt? (Grounds 1 to 5 and Appellant’s Issues 1 – 5).
(2) Whether the defence of Alibi, as raised by the Appellant, during his address in Court can be available in law for the benefit of the Appellant?
Arguing the appeal on 27/6/2018, Appellant’s Counsel, Chief H.N. Duroha (who settled the Appellant’s brief), on Issue one, said that the prosecution did not disclose armed robbery. He submitted that for prosecution to secure a conviction, it must satisfy the Court, inter alia, that there was a robbery and that the robbers were armed, and Appellant was one of them.
Counsel said that PW3, the sole eyewitness, had stated that although he could recognize one of the robbers, whose penis he tried to grap, there is no evidence that he eventually identified Appellant as one of them. He said the trial Court was wrong to say that upon the evidence of PW’s 1, 2, 3 and 4, he was satisfied that, the prosecution had proved all the ingredients of armed robbery, including the fact that Appellant was one of the robbers. He argued that even the PW3, the only eyewitness, did not give such damaging evidence, either in his statement to the Police or in the Court; that PW’s 1, 2, 3 and 4 were not even around when the incident occurred; that they did not say/know whether the intruders were armed, and who they were. Thus, their evidence were hear-say. He added that there was no evidence as to the particular type of arms the intruders bore at the material time.
On Issue 2, Counsel said the prosecution did not discharge the onus of proof; that, in the first place, the Police did not investigate the alibi raised by the Appellant. He relied on the case of Onuchukwu Vs State (1998) LPLER 2701 SC and Peter Vs State (2013) LPELR 20302 (CA) to say that failure of the Police to investigate alibi leads to acquittal of an accused person. Counsel referred us to Exhibit J (Appellant?s Statement to the Police on 30/7/97), where Appellant raised alibi at the earliest opportunity, that in the night of the attack he was elsewhere, thus:
“On Saturday 26/7/97, I was at Owerri and I slept in my yard with Promise ‘M’, father’s name unknown, a shoe maker from Amaozara, who owns the room.” (Page 24 of the Records)
Counsel said those were sufficient particulars, but the Police chose not to investigate it, and never complained of not being given sufficient particulars of the alibi. Counsel said that, unfortunately, it was the trial Court, not the Police who held that the particulars of Promise was insufficient (See page 134 of the Records of Appeal).
Counsel also said it was of note that Appellant was arrested on his way from Owerri to Amaraku, on 27/7/97; that if Appellant was leaving the village or scene of the robbery on 27/7/97, then he ought to have been travelling in the Amaraku – Owerri direction, and not vice versa; that this arrest should not be confused with his second and final arrest from his shop on 30/7/97.
Counsel also argued that the Police ought to have conducted identification parade to identity the robbers, in the circumstances.
On Issue 3, whether the prosecution made out any connection between the Exhibits F – F3 and Appellant, Counsel answered in the negative. Counsel said that in Exhibit A, Eugene Obasi stated his stolen items as food cooler, wall clock, generator amature and clothes (page 9 of the Records). But that PW3 mentioned no stolen items in his Statement (Exhibit G). Rather in Exhibit E, Inspector Valentine Opara, strangely, told the Court that the apprehended Appellant and the deceased Ikechukwu on 27/7/97 at 6am, were found with:
(a) One yellow thermocool
(b) One big control switch property of NEPA
(c) One wall clock
(d) One long sleeves shirt
(e) The Vehicle fan belt
(f) One wrapper
(g) Eight burglary apparatus
(h) One torch light.
Counsel argued that there was nothing to show that the items in Exhibit E came from the home of PW1, or that they were stolen items. Counsel further said that there was evidence that the items Appellant was arrested with by the Police, being cooler and wall clock, were released to him upon showing the Police receipts for the said items – page 62 of the Records. Counsel said that the trial Court ought to have accepted that Exhibits F – F3 were not taken from Appellant and had nothing to do with him.
On Issue 4, whether Exhibits A, B, C, D, E, G and H were properly received in evidence at the trial, Counsel answered in the negative. He argued that the said Exhibits are all statements, purportedly, made in this case to the Police in the course of investigation, thus they are public document, under Section 102 of the Evidence Act 2011, that by Section 105 of the Evidence Act, the said documents could only be properly received in evidence as certified true copies; that they were not certified. He relied on the case of Anatogu Vs Iweka III (1995) 8 NWLR (Pt.415) 547. He urged us to expunge the documents having been improperly received in evidence. He added that the probative value placed on the documents caused miscarriage of justice. He relied on Maduka and Ors Vs Anyadiegwu (2014) LPELR 23751 CA.
Furthermore, Counsel said Exhibits A, B, C, D, E, G and H were made by Police Officers, acting through interpreters; that none of the interpreters was called as witness. He urged us to expunge the documents, relying on FRN Vs Usman (2012) LPELR 7818 SC; R. Vs Ogbuewu (1949) 12 WACA 483.
On Issue 5, whether the fact that Appellant’s detention by the Police ought to have been a ground for his conviction, Counsel answered in the negative. The trial Court had held:
‘The fact that the 1st accused Uzoma Emeto continued to be detained by the Police for the said offence, shows that the 1st accused and his brother DW2 are not telling the truth’ page 10 of the Records.
Counsel said the above view influenced the decision of the trial Court, resulting in the unjust conviction of the Appellant. Counsel said there was absolutely no logical, evidential or legal justification for that view by the trial Court.
On Issue 6, whether the Court ought to have discharged and acquitted Appellant, upon finding the 2nd and 3rd Accused persons not guilty, Counsel answered in affirmative. He asked ‘Simply put, in a one Count charge that three accused persons are said to have committed offence, jointly, should an acquittal of two not lead to that of the third accused
Counsel urged us to resolve the issues for Appellant and to allow the Appeal.
Responding, Respondent’s Counsel, G.O. Charles – Olumba (Mrs), Chief State Counsel, arguing the Issue one said the offence for which Appellant was convicted was armed robbery; that there was robbery and the robbers were armed at the time of the operation and the accused person was one of the robbers. Counsel relied on the case of Ifeanyichukwu Akwuobi Vs The State (2017) LRCN 143 for ingredients of armed robbery. She argued that the trial Court made the correct inference, when it held Appellant guilty; that a judge is permitted to infer from the facts proved and other facts necessary to complete the elements of guilt or establish innocence is sound and sensible; that evidence must be closely examined in order to be certain, that here are no other co-existing circumstances which may weaken or destroy the inference. He relied on Thomas Vs The State (2017) 272 LRCN 202 at 215 (SC).
Counsel said it was the unchallenged evidence of prosecution that the trial Court relied on to convict the Appellant. Counsel said that the trial Court made a finding to the effect that the evidence led, before it, and Appellant’s confessional statement, unequivocally, established that Appellant committed the offence; that even with the unchallenged voluntary extra judicial confessional statement of the Appellant, as in Exhibit B, the trial Court was entitled to find the Appellant guilty as charged, based on Exhibit B alone. She relied on the case of Ifeanyichukwu Akwuobi Vs The State(2017) LRCN 143 at 184.
She also relied on Section 27 of the Evidence Act 1990 (Section 28 of 2011 Act). Counsel said there was no trial within trial on Exhibit B; that the Appellant only made sparse denial of the statement, under cross examination. She relied on the case Agu Vs The State (2017) 272 LRCN 140 to say that, it is only desirable and not mandatory for the trial Court to identify such corroborative evidence outside the confessional statement, before convicting the accused on the confessional statement.
On Issue 2, whether the defence of alibi availed the Appellant, Counsel answered in the negative. She admitted that Appellant raised the defence of alibi in the 1st extra judicial statement (Exhibit J) before he changed his mind to do the confessional statement.
Counsel said that Appellant’s alibi comes into issue only when prima facie case is made out against him by the prosecution. He relied on Sopakiriba Vs The State (269) (sic) LRCN 163.
Counsel said it is true, indeed, that to be entitled to the benefit of defence of Alibi, an accused person must raise it at the earliest opportunity, would preferably be in his extra – judicial statement; to offer the Police an opportunity to investigate it. She relied again on Agu Vs The State (supra); Hassan Vs The State (2001) 90 LRCN 2836. She asserted that the defence of alibi was not available to Appellant; that the particulars of the alibi in Exhibit J was conflicting and a mockery of the defence. Counsel relied on Ezeuko Vs The State (2016) 253 LRCN 1 at 51; Adegbite Vs The State (2017) 272 LRCN 43 at 69 on how to successfully plead alibi, and urged us to resolve the Issue against Appellant. She also relied on The State Vs Ekanem (2017) 264 LRCN 153 at 166.
Counsel said there was no doubt in the mind of the trial Court, when the Court admitted, without challenge, Exhibits F – F3 and the statement of Inspector Valentine Opara (Exhibit E) who arrested the Appellant in the early morning of the incident at Amaraku, escaping with Exhibits F ? F3 ? which PW1 identified with his initials on them, as items removed from his house when it was broken into, and the items taken away, during the armed robbery incident. Counsel said that the law is trite that when a person is found with stolen item, so soon after the occurrence of the incident, that person is presumed to be the thief himself. She however cited no law to backup that submissions.
Counsel urged us to dismiss the Appeal.
RESOLUTION OF ISSUES
I shall consider this appeal on the two Issues donated by the Respondent, as they appear more apt, but with some modifications, and I will take them, together.
Was the trial Court right to convict and sentence the Appellant to death in the face of the evidence adduced, and considering the defence of alibi raised by Appellant, at the earliest opportunity?
The law is trite on how to prove offence of armed robbery, namely that:
(1) That there was a robbery
(2) The robbers were armed on the operation and
(3) Appellant was one of the robbers
See Akwuobi Vs The State (2017) LRCN 143 at 178; (2016) LPELR 41389 (SC), where the Supreme Court held:
‘It is trite law that for the prosecution to establish the offence of armed robbery, it must ensure that the followings are proved to the satisfaction of the Court:
(a) That there was, in fact, a robbery.
(b) That the robbery was an armed robbery, that is, the robbers or at least one of them was armed
(c) That the accused person was the armed robber or one of them (armed robbers). See Bozin Vs State (1985) 2 NWLR (Pt.8) 465; Alabi Vs State (1993) 7 NWLR (Pt.307) 551; Olayinka Vs State (2007) 4 SC (Pt.1) 710; (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM 193.’ Per Ariwoola, JSC
In Ugboji Vs State (2017) LPELR ? 43427 SC, the Supreme Court said:
“All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any of the ingredients of the offence charged, the accused is entitled to acquittal by the trial Court or appellate Court. See Agboola Vs State (2013) 11 NWLR (Pt.1366) 619 at 641. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the under mentioned elements, namely:- (i) that there was a robbery. (ii) that the robbers or any of them was armed at the time the robbery and (iii) that the accused person or persons was/were the armed robber(s). See Ikaria Vs State (2012) SCNJ 325”
In this case, Appellant and others were charged as follows:
“Attorney General of Imo State of Nigeria
VS
(1) IKECHUKWU EZEJI
(2) UZOMA EMETO
(3) MARTIN OKOROJI
(4) RUFUS AHANONU
The day of —- 1998. At the Tribunal.. at Owerri on the? 1998; the Tribunal is informed by the Attorney General of Imo State, on behalf of the State, that Ikechukwu Ezeji, Uzoma Emeto, Martin Okoroji and Rufus Ahanonu are alleged with the following offence:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. XXII, Laws of the Federation of Nigeria, 1990
PARTICULARS OF OFFENCE
Ikechukwu Ezeji, Uzoma Emeto, Martin Okoroji and Rufus Ahanonu on the 27th July, 1997, at Ogbor Ugiri, Isiala Mbano, in the Mbano/Etitili Judical Division, while armed with firearms and offensive weapons, to wit: gun and knieves, respectively, robbed Eugene Obasi of one Sieko wall clock, one thermocool food flask, one control switch, two engine belts, one wrapper, one generator amature and immediately during the (robbery) used personal violence on one Mr. Levi Madu, the night guard of Eugene Obasi.
When Appellant and the other accused persons were arraigned at the High Court on 19/5/2004, he and the others pleaded Not guilty to the Charge, putting the prosecution to the task of proving their guilt. At the end of the trial only the Appellant was convicted and sentenced to death by hanging. The 2nd and 3rd Accused were discharged and acquitted, while the original first Accused, Ikechukwu Ezeji, had died in the course of trial. The trial Court had held Appellant guilty, his defence of alibi, notwithstanding. The Court said:
“It is necessary to determine at this point the issue of alibi referred by the learned Counsel for the 1st accused in which the 1st accused stated in his statement of 30/7/97 (Exhibit J), that he slept with one ‘Promise’. It is observed that in the said statement (Exhibit J) the 1st accused Uzoma Emeto merely stated that he lives at Akwakuma, Mbieri Road, Owerri without giving the number and name of the street where he lives at the time in Akwakuma. The 1st accused further stated in Exhibit ‘J’ that he does not know the surname of the said Promise that he slept with on the night of 26/7/97 and that the said Promise is a shoe maker and that he attached himself to him. In his evidence in Court, the 1st accused stated that the Promise he was referring to in the said statement (Exhibit J) is his brother. This clearly shows that the 1st accused is not telling the truth, because he could not have said in his statement (Exhibit J) that the surname of the said Promise is unknown, if indeed the said Promise is his brother. I hold that the allegation or claim concerning the said ‘Promise’ is a farce and cannot avail the 1st accused Uzoma Emeto as a defence or an alibi.
In the final analysis, I hold that the prosecution has failed to prove the charge against 2nd and 3rd accused persons? In respect of the 1st accused, Uzoma Emeto, I hold that the prosecution has proved the charge of armed robbery against the 1st Accused Uzoma Emeto, beyond reasonable doubt. I find the 1st accused Uzoma Emeto guilty of armed robbery See page 134 to 135 of the Records.
On pages 133 to 134 of the Records, the trial Court had earlier held:
“Although in Court, the 1st accused Uzoma Emeto denied making the said confessional statement (Exhibit B) and also stated that the Thermocool Cooler, Wall clock and other items found with him at the time of his arrest on 27/7/97, were returned to him by the Police upon the production of the purchase receipts for the items by his brother DW2, Ochoma Emeto, and that the Cooler found with him is blue and not yellow, I do not believe this evidence of the 1st Accused Uzoma Emeto and his brother DW2. Their evidence is intended to give the impression that the Police believed the 1st accused, that he is the owner of the items recovered from him at the time of his arrest and released the items to him. The fact that the 1st accused Uzoma Emeto continued to be detained by the Police for the said offence shows that the 1st accused and his brother DW2 are not telling the truth. The items and Exhibits, definitely, were not returned to him or his brother at anytime. I do not believe them and reject their evidence.
Although the prosecution witnesses did not identify any of the accused persons as the armed robber, the fact that the items stolen from the house of PW1 and identified by him at the Police Station to be his, are those the 1st accused Uzoma Emeto was caught carrying when he was arrested on 27/7/97, after the robbery incident and the fact of the confessional statement (Exhibit B) of the 1st accused Uzoma Emeto in which he admitted taking part in the said robbery at the house of PW1, lead unequivocally to the fact that the 1st accused, Uzoma Emeto, was one of the armed robbers that robbed the house of PW1 on 27/7/97 and inflicted injuries and used personal violence on Levi Madu (PW3), the night watchman of PW1 Eugene Obasi.”
I think the above findings and holdings are fraught with conflicts and dangerous assumptions that tend to make the decision perverse. For instance:
(1) How can the continuous detention of Appellant and his brother, DW2, for the said offence, show that 1st accused and his brother’s proof of guilt, or that they were telling lies about the claim that the items, which were found with Appellant, were released to him by the Police?
The trial Court is expected to know that, often detention of a suspect by the Police, even for a long time, is not evidence of commission of the offence alleged against him. There are myriads of cases where the Police is condemned and held liable for unlawful detention! See Igbosonu Vs Ohayagha & Ors (2015) LPELR 41870 (CA); Igweokolo Vs Akpoyibo & Ors (2017) LPELR 41882 CA; JIM – JAJA Vs C.O.P. Rivers State (2012) LPELR ? 20621 (SC); Ozide & Ors Vs Ewuzie & Ors (2015) LPELR 24482 (CA) where we held:
“Of course, the duties of the Police under the Police Act, or under the Constitution, are circumscribed by the law, Police cannot act at large, aligning with mischief makes and criminal elements to becomes a terror to the citizens and subject law abiding citizens to harassment, intimidation and fear.”
(2) If there is evidence that the items which the Police found on the Appellant, when he was arrested on 27/7/97, were released to him on production of receipts of purchase of the same, as per DW1 and DW2, and there is no credible evidence from the Police to debunk the same (See pages 99 and 100 of the Records, where those evidence by DW1 and DW2 were not debunked and page 97, where the PW2 (Inspector Odein Egor (later ASP) testified and did not deny the claim), where then did the trial Court find his basis to disbelieve the Defence, when it said “I do not belief this evidence of 1st accused, and his brother DW2. Their evidence is intended to give impression that the Police believed the 1st accused that he is the owner of the items recovered from him at the time of his arrest, and released the items to him.”
I do not think the trial Court had any choice, in the circumstances, as there was nothing from the prosecution, in my opinion, to suggest any disbelief of the accounts of the defence. Even the alleged Valentine Opara, who allegedly arrested the Appellant with the alleged items was not called in evidence, and PW2, who testified as one of the team that investigated the case made a shabby presentation and tried to deny one Enyinnaya (a Police Officer) serving at Isiala Mbano Police Station, who first investigated the case and took the statement of the accused persons (Exhibit J). PW2 did not also tender the Exhibit J (Statement of Appellant, made on 30/7/97) but rushed to tender Exhibit B (which was alleged to be the confessional statement of Appellant), as well as Exhibits C, D, E, F to F3!
A trial Court is precluded from resorting to his own brain waves or personal feelings to found his decision in a case. See Obi Vs A.G. Imo State (2014) LPELR 24280 CA:
‘A trial Court must not be seen to descend into the arena of conflict in a trial, to generate evidence or facts not canvassed or adduced by witness(es) or apparent on the face of the records before him, to decide a case. See the case of Theophilus Ajakaiye Vs The State (2015) 5 WRN 64; Ayoade Vs Spring Bank Plc (2014) 4 NWLR (Pt.1396) 93.
I think, before, a Court can express its disbelief of an evidence, where there is no Counter information to found that disbelief, the evidence, itself, must be completely unreliable, worthless, incredible and/or false, on the face of it, that no reasonable Court or tribunal can rely on it. See Shaibu Vs State (2017) LPELR 42100; Amadi Vs A.G. Imo State (2017) LPELR 42013 SC.’
(3) Appellant had raised a defence of alibi, at the earliest opportunity, when he was arrested on 30/7/97 in Exhibit J. Surprisingly, the trial Court took upon itself to fault the defence of alibi, when the Prosecution did not even complain and did not investigate it or see reason to investigate same. I had earlier stated that the prosecution did not produce the said statement of the Appellant. It was the Appellant who caused the said statement to be produced as Exhibit J, when he gave evidence. The Exhibit is on page 24 of the Records of Appeal.
In it, Appellant said:
‘I wish to state that I am Uzoma Emeto of Ogbor Ugiri in Isiala Mbano L.G.A. I am a trader by profession. I sells (sic) clothes at Okigwe Park Owerri and I am living at Akwakuma Mbieri Road Owerri Imo State. On Saturday 26/7/97, I was at Owerri and I slept in Yard with Promise ‘M’ father’s name unknown, a shoe maker from Amanzara who owns the room. I am just attaching myself with him there. On Saturday 27/7/97, at about 0730 hrs, I reached Amaraku from Owerri with Cooler, Wall clock, control switch and so spanners. I am the owner of wall clock and the Cooler. The receipts are with Ochonma Emetu ‘m’, my junior brother at Ogbor Ugiri Isiala Mbano. The control switch and spanner is (sic) owned by Arizoma Enterprises, Ikenegbu Owerri. He (sic) gave it to me to hold for him (sic) on Thursday 24/7/97. I came with these items to drop the Cooler and went (sic) back with them to Owerri. On the Sunday 28/7/97 (sic) by 0730hrs as I was with Ikechukwu Ezeji who met me at Okigwe park 0700 hrs, from where he is living near Concorde Owerri and I boarded a vehicle together with him to Amaraku Isiala Mbano. On our way going, as we were trekking with leg, on reaching Umuezefeke Ugirinna, one man I later identified to be a Police Officer, held me with the Cooler containing the switch, spanners and the wall clock. He name unknown, the Police Officer asked Ikechukwu Ezeji to go and called (sic) his mother, while he took me with the items to Amaraku Police Station. I know the house and the owner of the place thieves robbed but I don’t know the name of the owner. The person who owns the house is from my village Ogbor Ugiri. I did not steal at Eugene Obasi house and I don’t know the person who robbed in his house. I was not the person who fired two shots of cartridges in the man’s compound and I don’t know the people since I was not among the people that robbed the place.’
(Of course, that part of the instant were instigated by the Policeman who took down the statement, raising those questions).
The PW1, Eugene Obasi, who was robbed, made statement to the Police on 28/7/97, thus:
I am residing at Umuahia, Abia State. I am a trader On 27/7/97 at about 1549 hours, my Senior brother Lawrence Obasi came to my Station Umuahia to inform me that unknown thief or thieves broke into my house, tied the security man on guard, gave him matchet cut all over his body; and now admitted at St. Joseph Hospital Okwelle, for medical treatment. He further said that the thief or thieves removed properties from my house namely one food cooler, valued 3,500, one wall clock value N500 generator amature value N20,000.00 clothes valued N10,000. My wife and children cloth N15,500 one doors glass alumico valued N2500 was broken into pieces, doors, keys were damaged valued N300.00 (Page 5 of the Records)
He made another statement on page 6 of the Records that:
‘I voluntarily wish to add to my formed statement to say that I am hereby identifying three items recovered from Uzoma Emeto (M) and Ikechukwu Ezeji (M) all of Ogbor Ugiri and Umusu Ugiri, respectively, from Isiala Mbano L.G.A. On that Sunday 27/7/97 at about 1100 hours by Amaraku Police. The identified there are:
(1) One food thermocool cooler 40 litres yellow in colour
(2) 1 big control switch
(3) 2 engine belts
(4) 1 sieko wall clock
(5) 1 wrapper
All items were among the items stolen from my house on that Sunday 27/7/97 by 0200 hours. (Underlining mine, because Appellant had said that this Cooler (recovered from him was blue in colour).
In his evidence in Court, PW1, said he was invited by the Police to identify the Exhibits F to F3. The PW2 had tendered the Exhibits F, F1, F2 and F3. But in the whole Records, I have not seen the prosecution identify what these Exhibits were, as they were just lumped and dumped in Court and phrased – that he (PW1) went to the Police Station and identified Exhibits F – F3. PW2, who was supposed to state what the Exhibit F to F3 were, one by one, the Court simply said: “He tendered Exhibits ‘B’ ‘C’ and ‘D’ ‘E’ which are statement of the accused persons. He further tendered Exhibits F, F1, F2, F3. He concluded his evidence.” See pages 96 to 97 of the Records.
It was rather the trial Court, in its judgment, that explained what Exhibit F to F3 were on page 126 of the Records as some of the items taken from PW1’s house. I have also not seen where the prosecution, in their evidence, linked the alleged Exhibit F to F3 with the Appellant, whatever they were.
I think the learned trial Court was, therefore, wrong to say on page 133 of the Records:
“In respect of the 1st accused Uzoma Emeto, the prosecution through its witnesses PW1 and PW2 the IPO Oden Egor, showed that some of the items stolen by the robbers from the house of PW1, Exhibits F, F1, F2, and F3 were recovered from the 1st Accused, when he was arrested by late Inspector Valentine Opara in the morning of the 27/7/97, at 6am and taken to the Amaraku Police Station
That finding was not borne out of the evidence of the prosecution, as shown on pages 96 and 97 of the Records, where PW1 and PW2 testified. A Court’s finding must be founded on the evidence before the Court. (Ayoade Vs Spring Bank Plc (2014) 4 NWLR (Pt.1396) 93).
In any case, Appellant has denied making Exhibit ‘B’ alleged to be his confessional statement. And I cannot see how Exhibit B and Exhibit J, which Appellant made on 30/7/97 at the earliest opportunity, can co-exist. Exhibit B was said to have been made on 9/8/97. I have not seen any such confessional statement of the Appellant in the Records of Appeal, made on 9/8/97.
Appellant’s plea or defence of alibi, was not investigated. He stated where he slept in the night of 26/7/97, waking up on 27/7/97; he named the person he slept with ‘Promise’ male, who owned the room he Appellant attached himself to in Akwakuma, Mbieri Road, Owerri. He stated the address ‘area of the locality’ as Akwakuma, Mbieri Road, Owerri; he stated what his host ?Promise? does for a living and where he does his trade. I think the prosecution owed Appellant a duty to investigate the alibi, by going to the place. The trial Court cannot explain, away, the defence of alibi, as it tried to do, when the prosecution never complained of any inadequate particulars, supplied by the Appellant. After all, the Police admitted visiting the place, in the cause of their investigation!
Why did they not interrogate ‘Promise’, as to where Appellant slept that night? It is also curious, that Appellant was arrested in Owerri in the morning of 27/7/97, on their way to Amaraku, Isiala Mbano, not rather going to Owerri that morning. It does not add up that he was taking the alleged stolen items from Owerri, where he lived to the alleged scene or area, the crime was committed! The trial Court cannot also Judge Appellant for referring to ‘Promise’ as his ‘brother’. Did that mean blood brother or the usual Igbo meaning of ‘brother’ when referring to one in close association or ‘towns man’.
The law is trite that every defence raised by the accused person, including alibi, has to be investigated, no matter how stupid or silly it may sound or appear. See the case of Olaiya Vs The State (2010) LPELR 2559 (SC); (2010) 3 NWLR (Pt.1181) 423 SC; Salami Vs The State (1988) 3 NWLR (Pt.85) 670; Nwabueze Vs The State (1988) 4 NWLR (Pt.86) 16; Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92. See also Chukwunyere Vs The State (2017) LPELR ? 43725 (SC):
‘Simply put, the word alibi means ‘elsewhere’. Whenever accused persons defence to a criminal charge is alibi, he is simply saying that he was at another place at the time material to the charge.
The defence is based on the physical impossibility of an accused guilt by placing him in a location other than the scene of the crime at the relevant time. See Blacks’ Law Dictionary, 9th Edition, page 84; Shehu Vs The State (2010) 8 NWLR (Pt.1195) 112; Olatinwo Vs The State (2013) LPELR 19979 SC; Ayan Vs The State (2013) LPELR 20932 SC; (2013) 15 NWLR (Pt.1376) 34; Idemudia Vs The State (2015) LPELR 24835 SC; Eyisi & Ors Vs The State (2000) LPELR 1186 SC ‘Whenever an accused person intends to rely for his defence, on alibi, the law is trite that he must raise it at the first possible opportunity in answer to the charge by the Police at the investigation stage to enable the truth and falsity of the allegation to be established by the Police. The accused must furnish the particulars of his alibi in full details to the Police’.
He must also mention those present with him at the address furnished Per Okoro JSC
In the case of Okafor Vs A.G. Imo State (2018) LPELR 43693 (CA), it was said:
Once defence of alibi (or any defence for that matter) is raised by an accused person, the prosecution is under obligation to investigate it and the trial Court has a duty to consider it, before coming to its decision? Once alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi to find out if it is true the accused was not at the scene of crime when the crime was being committed, or to rebut the alibi if it was false. See Adio Vs The State (1986) 3 NWLR (Pt.31) 714.
I think this principle becomes more demanding in this case, where Appellant was not pinned down to the scene of crime by any witness and the trial Court had stated so; that none of the prosecution witnesses identified any of the accused persons as the armed robber. (See page 134 of the Records). See again the case of Chukwunyere Vs The State (2017) LPELR 43725 (SC). It is therefore surprising to me that the learned trial Judge convicted the Appellant in the circumstances.
I can see merit in this appeal, as I think the trial Court gloss over the many flaws by the prosecution, in the proof of the alleged offence, beyond reasonable doubts;that there was a robbery whereof the robbers were armed with offensive weapons, and that Appellant was the robber or one of them.
Failure to investigate the alibi set up by the Appellant in Exhibit J, on 30/7/97 at the earliest opportunity, in my opinion, was fatal to the entire trial.
I allow the Appeal and set aside the decision of the Lower Court in this case. I enter a verdict of discharge and acquittal for the Appellant, which is what, I think, the trial Court should have done, in Charge No. HOW/ART/2/99.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in draft the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA which has just been delivered. I agree entirely with His Lordship’s lucid analysis, coupled with the reasoning which led to the emphatic conclusion that the instant appeal matter ought and deservingly too should be allowed. I also adjudge this appeal to be meritorious. It is accordingly allowed by me. I abide by the Consequential orders made in the said lead judgment of my learned brother, Mbaba, JCA.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
CHIEF H.N. DUROHA, WITH HIM, STELLA O. OMUFor Appellant(s)
G.O. CHARLES-OLUMBA (MRS.), CHIEF STATE COUNSEL, WITH HIM, UCHE STELLA CHUKWU (MISS) SC.For Respondent(s)
