Sampson Ebenehi V. The State (2009)
LAWGLOBAL HUB Lead Judgment Report
J.O. OGEBE, J.S.C
The High Court of Justice Anyigba in Kogi State tried the two appellants for the offences of conspiracy, mischief and robbery under the relevant sections of the penal code and convicted them on the 4th of June, 2004. They were sentenced to various terms of imprisonment and fines.
They were dissatisfied with the judgment of the trial court and appealed to the Court of Appeal Abuja division and their appeals were dismissed. This is a further appeal to the Supreme Court.
The learned counsel for the 1st appellant filed a brief on his behalf and distilled two issues for determination as follows:
“1. Can it be said that from the evidence on record there are sufficient circumstantial evidence to pin the 1st appellant to the incident and the scene of crime.
- Was the defence of alibi raised by the 1st appellant properly considered”
The learned Attorney-General of Kogi State filed a brief on behalf of the respondent in answer to the 1st appellant’s brief. He formulated three issues for determination as follows:
“(1) Whether the lower court properly rejected exhibit P5 the confessional statement of the 1st appellant.
(2) Whether the defence of alibi raised by the 1st appellant was properly dismissed by the lower court.
(3) Whether the prosecution has proved the charges against the 1st appellant beyond reasonable doubt to warrant his conviction and sentence being affirmed by the lower court.”
A brief was also filed on behalf of the 2nd appellant raising the following three issues:
(1) Whether the learned Justices of the lower court were right in upholding the decision of the trial judge in rejecting the defence of alibi raised by the 2nd appellant.
(2) Whether the learned Justices of the lower court were right in holding that there was circumstantial evidence linking the 2nd appellant to the commission of the crime.
(3) Having regard to the totality of evidence of Pw2, Pw3 and Pw4 and having expunged the confessional statement of the 2nd appellant, whether the learned Justices of the lower court were right in upholding the conviction of the 2nd appellant.”
The learned Attorney-General of Kogi State, Joe Abraham Esq. filed a brief on behalf of the respondent in answer to the 2nd appellant’s brief and raised the following three issues:
“(1) Whether the Court of Appeal properly rejected exhibit P6 and the 2nd appellant’s confessional statement to the police.
(2) Whether 2nd appellant’s defence of alibi was properly dismissed by the lower court.
(3) Whether the prosecution has proved the charges against the 2nd appellant beyond reasonable doubt to warrant his conviction and sentence being affirmed by the lower court.”
The first issues formulated by the hon. Attorney-General in his two briefs questioning whether the lower court properly rejected the confessional statements of the appellants, namely exhibit “P5” and exhibit “P6″ did not arise from any of the grounds of appeal. If he had wanted to challenge the rejection of the confessional statements by the lower court, he should have cross appealed. Since he did not do so, the first issue he raised in respect of each appellant is incompetent and the 2 issues are hereby struck out. The learned counsel for the 1st appellant in arguing the first issue submitted that since the victims of the robbery did not recognize their assailants there was no direct evidence to link the 1st appellant with the robbery. The lower court relied on circumstantial evidence which was not sufficient to prove the offences charged against the 1st appellant. He submitted that for circumstantial evidence to support conviction there must be a complete and unbroken chain of evidence to justify a trial court coming to the irresistible conclusion that the accused person and no one else committed the offence alleged. He relied on the case of Chime Ejiofor v. The State (2001) 9 NWLR Pt. 718, 371.
In reply to this issue, the learned Attorney-General submitted that the lower court was perfectly right to have held that the prosecution proved the charges against the 1st appellant beyond reasonable doubt especially as the 1st appellant was caught a few hours after the robbery with the keys of the two vehicles belonging to the victims of the robbery and the door keys of their house. The facts of the case are that in the night of 16th August, 2001 between 11 pm and 2 a.m, Pw3 Ibrahim Okoto, Pw4 Dupe Joel, and Pw5 David Abimaje were attacked in their houses in Ojiapata village in Odekina local government area of Kogi State by armed assailants who robbed them of their money and took away the keys of their vehicles and the keys of the door of the main house. At about 5.a.m. on the 17th of August, 2001, just a few hours after the robbery ,the 1st appellant was arrested by the villagers of Odolu-Efu, a nearby village with a bag containing a hammer, car keys belonging to Pw3 and Pw4 and the keys to Pw3’s house. The 1st appellant in his confessional statement named the 2nd appellant as one of those who took part in the robbery. Since the confessional statement has been rejected by the lower court rightly or wrongly and there is no cross appeal to challenge it, I shall say no more about it.
This Court in the case of Chime Ejiofor v. The State (2001) 9 NWLR Pt. 718, 371 at P. 385 has this to say on circumstantial evidence:
Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own facts but the one test which such evidence must satisfy is that is should lead to the guilt of the accused person and leave no degree to possibility or chance that other persons could have been responsible for the commission of the offence”,
The 1st appellant could not explain how he came about the keys belonging to the victims of the robbery within hours of the robbery. He was caught with the keys by villagers of the neighbouring village who had no information of the robbery. All that his lawyer is arguing before this court is that the keys were not properly identified by the owners. There was evidence before the trial court that the Pw6, the police witness showed the keys to the owners and they identified them as theirs. The circumstantial evidence before the trial court which was also evaluated by the lower court irresistibly pointed to the guilt of the 1st appellant On the 2nd issue the learned counsel for the 1st appellant submitted that the alibi of the 1st appellant was not properly considered by the lower court. I do not agree with this submission. It is trite law that for the defence of alibi to be properly raised, it must be raised at the earliest opportunity when an accused person is confronted by the police with the commission of an offence so that the police will be in a position to check the alibi. In this case, the 1st appellant raised the defence of the alibi for the first time in the trial court. There was therefore no proper plea of the alibi by the 1st appellant to require any consideration by the trial court.
The learned counsel for the 2nd appellant submitted that the lower court was wrong in upholding the decision of the trial court in rejecting the defence of the alibi raised by the 2nd appellant. I do not agree with this submission because the 2nd appellant was raising that defence for the first time before the trial court. He did not raise it at the earliest opportunity to the police.
On the 2nd issue as to whether there was sufficient circumstantial evidence linking the appellant to the commission of the offence, the learned counsel for the 2nd appellant submitted that with the rejection of 2nd appellant’s confessional statement, there was no sufficient circumstantial evidence to link him with the commission of the offence. It is my view that the evidence of Pw2 Alabi Attah which linked him with the hiring of his vehicle to carry him and the 1st appellant and 3 other boys to a destination where he claimed his vehicle had broken down and no such vehicle was found there in the very night of the robbery clearly showed that the 2nd appellant was in the gang that committed the robbery that night. He arranged their transportation. It should be noted that the two lower courts have made concurrent findings of fact which this court will not disturb unless they are shown to be perverse. I also observe from the identical grounds of appeal filed by the two appellants that the 4th ground which reads:
“That the verdict of the lower court is unreasonable and cannot be supported having regard to the weight of evidence”, is not a proper ground of appeal in a criminal appeal. Such a ground is meant for a civil appeal.
See the case of Ibrahim v. The State (1991) 4 NWLR Pt.186, 399 at P. 424 where the Supreme Court held as follows:
“In civil cases, the question is as to weight of evidence. The inquiry is which of the two sets of evidence on an issue outweighs the other. To ascertain this, they are put on an imaginary scale and weighed together to find out which of them preponderates. But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial judge, that is the end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He needs not weigh them on a balance.”
For all I have said in this judgment I see no merit in the appeals of the 1st and 2nd appellants and I hereby dismiss the appeals and affirm their convictions and sentences by the lower courts.
SC.220/2008
