Abubakar Tijani Shehu V. The State (2009)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

This is an appeal against the decision of the High Court of Kogi State sitting at Okene (hereinafter referred to as the trial Court) presided over by H.A. Olusuyi, J. delivered on the 22nd day of May, 2007.

The facts surrounding this case as contained in the printed record of appeal before this Court are that, the Appellant as an accused person was charged before the trial Court on an information of one count of mischief by fire, contrary to and punishable under Section 337 of the Penal Code. It was alleged that the Appellant had cases pending against him at the Upper Area Court, Ebogogo in Okene Local Government Area of Kogi State. Before the cases were heard, the chambers of the President of the said Upper Area Court was gutted by fire wherein all the case files among others were destroyed.

The prosecution in proving its case called five witnesses; while the Appellant testified in his defence and also called one witness. At the end of taking evidence from the prosecution and the defence, the evaluation of the evidence placed before the trial Court alongside the submissions made by learned counsel on both sides, the learned trial Judge delivered his considered judgment wherein His Lordship convicted the Appellant as charged and sentenced him to two years imprisonment without an option of fine and to Five Thousand Naira (N5,000.00) fine or nine months imprisonment in default.

Dissatisfied with the said trial Court’s decision, the Appellant has appealed to this Court on five grounds of appeal. The said grounds of appeal without their particulars read as follows:

GROUND ONE

The learned trial Judge erred-in-law when he held that the charge alleging mischief by fire even though deficient for not stating the time of the fire incident (which is 3:00am) in the charge is cured by the evidence of the prosecution witness who in his evidence stated that the incident happened at about 3:00am and that it has not therefore misled the accused or occasioned miscarriage of justice.

GROUND TWO

The learned trial Judge erred-in-law when he held that the prosecution had proved the guilt of the Appellant beyond reasonable doubt as required by the law.

GROUND THREE

That the decision is erroneous in law for convicting the Appellant on circumstantial evidence that is not cogent and compelling and unequivocal as to lead to no other rational conclusion.

GROUND FOUR

The learned trial Judge erred-in-law when he rejected the defence of alibi raised by the Appellant and thereafter misdirected himself on the facts and convicted the Appellant.

GROUND FIVE

That the decision is unreasonable or cannot be supported having regard to the evidence.

Five issues have been formulated in the Appellant’s brief of argument for determination, namely:

(1) Whether the learned trial Judge was right in holding that the charge was good in law, although the charge did not state or specify the time of the commission of the alleged offence by the Appellant?

(2) Whether the learned trial Judge was right when he held that the prosecution proved the guilt of the Appellant beyond reasonable doubt?

(3) Whether the decision of the learned trial Judge is erroneous on point of law for convicting the Appellant on circumstantial evidence that is not cogent and compelling and unequivocal as to lead to no other rational conclusion?

(4) Whether the learned trial Judge erred in law when he rejected the defence of alibi raised by the Appellant and thereafter misdirected himself on the facts and convicted the Appellant?

(5) Whether the learned trial Judge properly evaluated the evidence on record?

In the Respondent’s brief of argument, three issues were formulated for determination. These are:

(1) Whether the prosecution proved its case of mischief by fire against the Appellant beyond reasonable doubt as required by law?

(2) Whether the trial court considered and rightly rejected the defence of alibi put up by the Appellant?

(3) Whether the charge framed against the Appellant was good in law?

When this appeal came up for hearing on 13th October, 2008, the learned counsel for the Appellant, Chief Francis Afeigbe adopted the Appellant’s brief of argument which was filed on 13th August, 2007. He urged this Court to allow the appeal, set aside the decision of the trial Court, order the discharge and acquittal of the Appellant.

On the other side, the learned counsel for the Respondent, Mr. J. A. Abrahams, the Honourable Attorney-General and Commissioner for Justice, Kogi State adopted the Respondent’s brief of argument which was deemed properly filed and served on 13th October, 2008. He urged this Court to dismiss the appeal and affirm the decision of the trial Court.

The issues formulated by the learned counsel for the Appellant in my opinion cover adequately the issues formulated by the Respondent’s learned counsel. I shall therefore in the resolution of this appeal make use of the issues formulated by the Appellant’s learned counsel.

However, I shall take issues two, three and five together because they are interdependent.

ISSUE ONE

Whether the learned trial Judge was right in holding that the charge was good in law, although the charge did not state or specify the time of the commission of the alleged offence by the Appellant?

The learned counsel for the Appellant pointed out that the charge did not specify the exact time the Appellant committed the alleged offence. Hence, the charge as framed was incomplete and therefore deficient. Learned counsel relied on the provisions of Sections 1(3) and 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 202 of the Criminal Procedure Code (hereinafter referred to as the CPC) to the effect that, a charge must contain such particulars as to the time and place of the alleged offence as are reasonably sufficient to give an accused person notice of the matter with which he has been charged. The requirement of giving sufficient particulars of charge in the notice to defend is for the avoidance of springing a surprise on an accused person. Reliance on this line of argument was placed on the cases of:

(1) COP. Vs. Agi (1980) 1 NCR p. 234 at pgs, 240 – 241; 2) Adio Vs. The State (1980) 2 NCR p.21;

(3) Joshua vs. The State (1985)1 SC p. 406 at p. 437 and (4) Medical and Dental Practitioners Disciplinary Tribunal Vs. Dr. J.E.N Okonkwo (2001) 5 NSCQR p. 650 at pgs. 674 – 675.

The learned counsel for the Appellant canvassed that the evidence of PW5that the incident leading to the arraignment of the Appellant occurred at about 3:00 a.m. was neither stated in the charge nor contained in the proof of evidence. The omission of the actual time the offence was allegedly committed by the Appellant can not be cured by the said oral evidence of PW5. Contrary to the system of criminal justice as entrenched in the 1999 Constitution, the charge was subject to speculation and inference and sprung a surprise on and thereby occasioned a miscarriage of justice to the Appellant. Section 382 of the CPC can not therefore cure the defect in the charge under consideration. For the provisions of Sections 1(3) and 36(6) of the 1999 Constitution are superior to and override those of Section 382 of the CPC.

Replying, the learned counsel for the Respondent submitted that the trial Judge rightly convicted the Appellant on the charge of mischief by fire as framed against him. Failure to include the time the offence was committed was not fatal to the case of the prosecution. It was a mere irregularity which is technical in nature and did not affect the substance of the case. The said omission of the time of the commission of the offence did not vitiate the trial and subsequent conviction of the Appellant. The essence of a charge in a criminal matter is to give the accused person sufficient notice of the allegations against him. What is more the Appellant in the instant case did not object to being tried on the said charge. He never complained about the particulars of the charge from the commencement of the trial to its conclusion.

The Appellant, if he felt that strongly ought to have raised an objection to the charge on the ground of error or defect immediately after the charge was read over to him and not later. Therefore, his complaint at this stage of the non-inclusion of the time the offence was committed in the charge is belated. On this position, reference was made to the case of: Agbo Vs. The State supra at 577 – 578. In that case, a similar objection was raised at the Supreme Court. That Court held that because the Appellant in that case did not raise the objection when the charge was read over to him at the trial Court, he could not raise it at a later stage. This position was further hinged on the provisions of Sections 206 and 382 of the CPC that, failure to include the time an offence was committed cannot

vitiate the trial and conviction of an accused person unless the accused person can show that the omission has

occasioned a miscarriage of justice to him. The Appellant in the instant case has not shown in any way that he was misled by the charge framed against him at the trial Court.

The contention under this issue is that the charge as framed against the Appellant at the trial Court was defective for failure to specify the actual time the Appellant allegedly committed the offence with which he was charged.

Under the common law criminal justice system from which Nigeria derived, it is established that in framing a charge, the prosecution is required by the provisions of Section 202 of the Criminal Procedure Code, Cap. 30 of the Laws of Northern Nigeria, 1963 applicable in Kogi State of Nigeria, to state particulars as to time, place and person against whom or thing in respect of which the crime was committed. The purpose of supplying the particulars of time, place and person who committed the offence is to give notice of the crime with which the accused is charged to enable him meet the case of the prosecution. The provisions of Section 202 of the Criminal Procedure Code are as follows:

“202. The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom, or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged”

It was contended for the Appellant that although in the charge, the time the Appellant allegedly committed the offence was not stated, PW5 gave evidence at trial that the offence was committed at 3:00am. In my opinion, there

is no substance in this contention. This supposed controversy has not in any manner prejudiced the Appellant in view of the provisions of Section 202 of the CPC earlier on reproduced. What is more, the specimen charge contained in Appendix B to and made pursuant to Section 100 of the CPC does not contain any provision for the hour of the day the crime is committed. Hence, the time of the day an offence is committed can not be said to be a requirement of a valid charge.

In the case of: Garba Vs. State (1999) 11 NWLR (pt. 627) p.422, it was stated in the charge that the offence was committed on or about the 3rd day of October, 1978 about 1600 hours, but the two prosecution witnesses who watched the commission of the crime claimed that the offence was committed when they were returning home at about mid-night. In the judgment of this Court in that case, at page 440 paras. F-G, Salam JCA had the following to say:

“Notwithstanding the error I think the charge drawn is valid since it complies with specimen of charge contained in Appendix B to the Criminal Procedure Code made pursuance of section 100 of the Criminal Procedure Code, cap 30 of the Laws of Northern Nigeria” 1963 applicable in Kano State of Nigeria. The draft charge in the appendix does not contain provision for the hour of the day the crime was committed I believe the time stated in Section 202 of Criminal Code Cap 30 is with reference to the day the offence was committed and not to the hour of day.”(The underlined is mine for emphasis).

I can not agree more with the learned counsel for the Respondent that the alleged omission in the charge of the time of the day the offence with which the Appellant was charged did not occasion any miscarriage of justice to the Appellant. This not being a requirement of the law, it is not injurious and can not be said to have vitiated the trial and conviction of the Appellant.

What is more, as rightly submitted by the learned counsel for the Respondent, the Appellant did not object to the alleged particulars of the charge throughout his trial. The law is trite that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. Hence, any objection to a formal defect in a charge must be taken before the plea, otherwise, the objection would be deemed to have been waived. See the cases of:

(1) Bamaiyi Vs. State (2006) 12 NWLR (Pt. 994) p. 221;

(2) Adio Vs. The State (1986) 3 NWLR (Pt. 31) p. 714 and

(3) Agbo Vs. The State (2006) 6 NWLR (Pt.977) p.545.

It is settled law that an accused person who acquiesced to an irregular procedure of his trial cannot complain about the irregularity on appeal, if it did not lead to a miscarriage of justice. In my opinion, this complaint being made by the Appellant at this stage is just an after-thought and an attempt on his part to wriggle out of his conviction at all costs.

From all I have stated above, this issue is fated for failure. I hereby declare the failure of issue one; it is resolved against the Appellant and in favour of the Respondent.

ISSUES TWO, THREE & FIVE

Whether the learned trial Judge was right when he held that the prosecution proved the guilt of the Appellant beyond reasonable doubt?

Whether the decision of the learned trial Judge is erroneous on point of law for convicting the Appellant on circumstantial evidence that is not cogent and compelling and unequivocal as to lead to no other rational conclusion?

Whether the learned trial Judge properly evaluated the evidence on record?

The learned counsel for the Appellant submitted that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt as required by law. That the conviction of the Appellant was based on unreliable testimonies of the prosecution witnesses which were centred on suspicion. There is no doubt that the evidence of James Abiodun Audu (PW1) who had instituted some actions against the Appellant was that of manifestations of vindictiveness and settlement of old scores was unreliable. On this opinion reliance was placed on the case of; Aruna Vs. The State (1998) 1 ACLR p. 369 at p. 381. The instances of motives alleged by the prosecution and relied upon by the trial Court to convict the Appellant were vehemently denied by the Appellant. The law is trite that where there is evidence of motive, this must be established or proved beyond reasonable doubt against an accused person. Reference was made in this regard to the case of: Amos Adetola Vs. The Queen 1959 NMLR p. 5, where it was held that in law evidence of motive is not an essential ingredient in a case of murder. However, if motive is alleged, it should be proved.

The learned counsel for the Appellant canvassed that opinions of the court not based on legal principles and evidence before it can not be a substitute of the legal requirement of proof beyond reasonable doubt. It was argued that the Appellant’s conviction was based on circumstantial evidence which was not cogent, compelling and unequivocal. The said circumstantial evidence was not examined narrowly and with care. The evidence adduced by the prosecution witnesses was capable of more than one interpretation, one against the prosecution and one in favour of the Appellant. The evidence adduced against the Appellant did not meet the requirement of proof beyond reasonable doubt. No rational conclusion could be drawn from the evidence. Moreover, because the allegations levelled against the Appellant are criminal in nature, these ought to have been reported by the complainants to the Police for due investigation at the material time. On this stance, reliance was placed on the case of: The State Vs. Nafiu Rabiu (1980) 1 NCR p. 47 at pgs. 71 – 72. Appellant should not have been convicted in the absence of direct evidence or overwhelming circumstantial evidence leading to none other conclusion than his guilt.

The law is trite that, the onus of proof in criminal matters rests on the prosecution and not on an accused person. Section 137(1) of the Evidence Act provides that he who asserts much prove. The entire evidence adduced before the trial Court by the prosecution was based on suspicion. The law is settled that, suspicion however serious cannot take the place of legal proof. On this position, reference was made to the cases of:

(1) Onyekwu Vs. The State (1988) 1 NWLR (Pt. 72) p. 565 at p. 576;

(2) Milton P. Ohwovoriole SAN Vs.FRN & 3 Ors. (2003) LRCN p. 896 at pgs. 909 – 910 and

(3) Abacha Vs. The State (2002) LRCN p. 1588. or (2002) 7 SCNJ p. 1 at p. 35.

The learned counsel for the Appellant opined that, the trial Court failed to properly evaluate the evidence adduced by the prosecution before convicting the Appellant. The mere fact that the story of the prosecution was more convincing than that of the Appellant was not sufficient to ground the conviction of the Appellant. In allegations of crime, the moment an accused gives an account which may be unlikely or could be true and such an account was not rebutted by the prosecution the accused is entitled to be discharged. In support of this legal principle, reference was made to the case of: Okolo Vs. Commissioner of Police (1977) NNLR p. 1. It is trite that a finding that a thing is most probable does not go so far as a finding that a thing is proved beyond reasonable doubt. A-probable evidence is not sufficient to discharge the onus of proof on the prosecution in criminal cases. This was the court’s pronouncement in the case of: R. Vs. Nasamu (1940- 1944) 6 WACA p.74. The learned counsel for the Appellant submitted that, the totality of the evidence adduced by the prosecution did not justify the judgment of the trial Court. On this position, he relied on the case of: Musa Kwam (2000) 2 SCNQR p. 812.

It was submitted in favour of the Appellant that in the instant case, the prosecution witnesses were interested parties who had scores to settle with the Appellant and their evidence should not have been believed and accepted by the trial Court. The trial Court equally failed to adequately perform its primary duty of evaluating and ascribing probative value to the evidence adduced before it. In the event of the failure of the trial Court to properly evaluate and scrutinize the evidence of the prosecution witnesses before convicting the Appellant, the law permits and indeed expects this Court, a Court of Appeal in appropriate circumstances as the instant case to look at the evidence on record and make appropriate and objective findings. On this position, reliance was placed on the cases of:

(1) Joe Golday Co. Ltd & Ors. Vs. Co-operative Development Bank Plc. (2003) LRCN p. 2372 and

(2) Fashanu Vs.Adekoya (1974) 6 SC p. 83.

Replying, the learned counsel for the Respondent submitted that in criminal cases, the prosecution has the onus to prove its case against an accused person beyond reasonable doubt. On this legal principle reference was made to Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 2004 and the cases of:

(1) Woolmington Vs. DPP.(1935) A.C p. 462:

(2) Haruna Vs.C.O.P. (1985) 7 NWLR (pt. 557) p. 215:

(3) Onubogu Vs. The State (1998) 1 ACLR p.435:

(4) Morka & Ors. Vs. The State (1988) 1 ACLR p.141 and

(5) Nwankwo Vs. The State (1990) 2 NWLR (Pt. 134) p.27.

In a charge of mischief by fire contrary to Section 337 of the Penal Code, the prosecution must establish the following ingredients beyond reasonable doubt:

i. That the accused committed mischief.

ii. That the mischief was committed by fire.

iii. That a building was destroyed or damaged.

iv. That the building was used as a place for the custody of properties amongst other uses.

By the evidence adduced before the trial Court, the prosecution was able to establish the above required ingredients of the offence. The trial Court was right In convicting the Appellant based on the said adduced evidence. The learned counsel for the Respondent reiterated the principle of law that proof beyond reasonable doubt does not mean proof without a shadow of doubt. In this regard, reliance was placed on the cases of:

(1) Agbo Vs. The State (2006) 6 NWLR (Pt. 977) p. 545 at pgs. 584 – 585 and

(2) Ahmed Vs. The State (2002) 1 SCM p. 33 at p. 56.

The law is settled that if the evidence adduced by the prosecution is so strong against an accused as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course It is possible, but not in the least probable’; then the case is said to have been proved beyond reasonable doubt. Nothing short of this will suffice to ground a conviction. The prosecution in the instant case adduced sufficient evidence in proof of the guilt of the Appellant, and even though there was no direct evidence, the circumstantial evidence pointed irresistibly to no other person but the Appellant. The evidence established against the Appellant is that he boasted and told different people on separate occasions that, he would do something that would change the course of the cases instituted previously against him at the Upper Area Court, Ebogogo. Before the next date of the hearing of one of the cases, the chambers of the President of the said Upper Area Court, Ebogogo was gutted by fire and all the files except the one in the custody of the Registrar of that Court were completely destroyed.

From the totality of the evidence adduced by the prosecution, there was compelling, cogent and positive circumstantial evidence which could only point to the guilt of the Appellant and none other. Where as in the present case, there is no direct evidence of an eyewitness account of the commission of an offence, the court may infer from the facts proved, the existence of other facts which logically and conclusively establish the guilt of the accused person beyond reasonable doubt. On this trite law, reference was made to the cases of:

(1) Adeniji vs. The State 6 NSCQR p. 656 at p. 672; and

(2) Akpan Vs. The State (2001) 11 SCM p. 66 or (2001) KLR (Pt. 127) p. 2767 at pgs. 2786 – 2787

In those cases it was held that by the provisions of Section 149 of the Evidence Act, the courts are permitted to draw inferences from relevant established facts. Hence, in the absence of direct evidence in the instant case, the trial Court could and rightly drew inferences from the relevant facts already adduced by the prosecution witnesses. The evidence adduced was more than mere suspicion.

The learned counsel for the Respondent conceded that the law is trite that suspicion no matter how strong cannot take the place of proof beyond reasonable doubt. He argued that the testimonies of the prosecution witnesses were cogent, compelling and conclusive in establishing the main thrust of the case for the prosecution. The pieces of evidence were corroborative of each other even though the witnesses interacted with the Appellant at different times and levels. It is a settled legal principle that the nature of corroborative evidence required in criminal prosecution does not need to be direct evidence that the accused person committed the offence. It is sufficient even if the evidence so adduced is only circumstantial, connecting or tending to connect him with the commission of the offence. Reference was made in this regard to the case of: Durugo Vs. The State (1992)9 SCNJ p. 46 at pgs. 60 – 61. The prosecution witnesses in the instant case were credible witnesses and the trial Court was right to have believed their testimonies.

It was further submitted in favour of the Respondent that, the Appellant had a motive to have committed the offence of mischief by fire for which he was charged, tried and convicted. It was in evidence that the Appellant had the interest of vying for the elective post of the Vice-Chairman of his Local Government and to this end wanted to get rid of the matters at the Upper Area Court. Reference was made to the testimony of PW4 at page 16 lines 16 to 25 and that of the Appellant under cross-examination at page 24 fines 20 to 24 of the record of appeal.

Basically, motive is immaterial in fixing criminal responsibility but where there is abundant evidence of motive for mischief it will go to support a charge. In the case of: Nwaebonyi Vs. The State (1994) 5 SCNJ p. 86 at p. 101, it was held that,

although proof of motive on the part of an accused person charged with the offence of murder is not a ”sine qua non” for his conviction for the offence, if such evidence is available it is not only a relevant fact but goes in appropriate cases to strengthen the case of the prosecution. In the instant case the prosecution was able to

prove that the Appellant had a motive for burning down the Upper Area Court, Ebogogo. He wanted to contest for the Local Government elections and did not want any court case hanging on his neck.

Issues two, three and five are centered on the evaluation of evidence at the trial Court. It is settled beyond controversy that to secure a conviction in a criminal charge, the onus is upon the prosecution to establish all the ingredients of the offence charged against an accused person. This onus as a general rule never shifts and a misdirection on the question of onus of proof is fatal unless it can be shown that on a proper direction the result would be the same. See the cases of:

(1) Aruna Vs. State (1990) 6 NWLR (pt. 155) p. 125; (2) Ozaki Vs. The State (1990) 1 NWLR (Pt. 124) p. 92 and

(3) Ubani Vs. The State (2003) 18 NWLR (pt. 851)p. 224.

The law is also settled as rightly submitted by the learned counsel for the Respondent that in criminal prosecutions, if the evidence adduced by the prosecution is so strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence: ”of course it is possible, but not in the least probable; the case is said to have been proved beyond reasonable doubt; nothing short of that will suffice for grounding the conviction of an accused. Proof beyond reasonable doubt therefore does not mean proof beyond shadow of doubt. Our law reports are replete with plethora of decided authorities on this age-long established legal principle. Recently, in the case of: Agbo Vs State supra, Mukthar JSC at pgs. 584 – 585, paras. G – A referred with approval to the “Locus classicus” case of: Miller Vs. Minister of Pensions (1947) 2 All ER p. 372 at p. 373 where the late erudite jurist, Lord Denning stated thus:

”Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the – community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

The next issue is whether the circumstances surrounding the burning down of the Upper Area Court, Ebogogo can be said to be positive, cogent and conclusively pointing inexorably at the Appellant. The contention in favour of the Appellant is based on the absence of direct evidence of the act of the Appellant leading to the burning of the building. The law is trite that the absence of direct evidence is indeed the very essence of resort to circumstantial evidence. Where direct positive evidence is elusive with respect to the commission of an offence, surrounding circumstances of positive, cogent and compelling evidence inescapably linking the accused with the commission of the offence is acceptable.

It is a legal principle long accepted without question that the ”Judges and sage of the law have laid it down that there is but one general rule of evidence, the best that the nature of a case will allow’-

See Omvehund Vs. Barker (1745) 1 Atkin p. 21 at p. 49. Hence, it has always been accepted that where direct evidence of eye witnesses is not available, the court may infer from the facts bearing in mind the common course of natural events. Circumstantial evidence often times is all that is available on points on which direct evidence would ordinarily be required. See the cases of:

(1) Idowu Vs. State (198) 11 NWLR (Pt. 574) p. 354; (2) Ijioffor Vs. State (2001) 9 NWLR (Pt. 718) p. 371;

(3) Archibong Vs. State (2006) 14 NWLR (pt 1000) p. 663 and (4) 1 SC Services Ltd. Vs. G.C. Ltd. (2006) 6 NWLR (pt. 977) p. 481.

In the case of: Ijioffor Vs. State supra, Karibi-Whyte JSC (Rtd.) at pg 390, paras. G – H and pg.391 paras. A – B, stated on this principle as follows:

“The evidence though indirect, is cogent, positive and compelling, pointing to appellant and to no other person for the commission of the offence. It can be observed from the evidence before the courts and construing the facts narrowly that the inevitable force of the circumstances lie in the unmistakable aim of the totality of the evidence which by an undersigned coincidence points in the direction of the guilt of the accused See The State Vs. Ugwu (1972) 1 SC 128; The State Vs. Udedibia alias Apolo & Ors. (1976) 11 SC 133. It has been consistently held in our courts that to sustain a conviction based on circumstantial evidence, the circumstances relied upon must lead conclusively and indisputably to the guilt of the accused – See The State Vs. Edobor (1975) 9-11 SC. 69.

This court has held in several decided cases, that the evidence in support of conviction must be cogent, and compelling to convince the court of the guilt of the accused and inconsistent with any other rational conclusions. There must be no other co-existing circumstances which can weaken such inference. See Lori Vs. The State (1980) 8 – 10 SC 81: 1;. Udedibia Vs. State (1976) 11 SC 133; Adepetu Vs. State (1998) 9 NWLR (Pt. 565) 185 Accordingly, for circumstantial evidence to be believed, and to justify the inference of guilt, the evidence must be incompatible with the innocence of the accused – See Fatoyinbo Vs. A.-G., Western Nigeria (1996) WNLR 4; Omogodo Vs. State (1981) 5 SC 5.”

It is an aberration and indeed an appellate Court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference. It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of a court of trial, which saw and heard and assessed the witnesses while they testified before it. The trial court has a near exclusive jurisdiction on matters of appraising evidence. Where therefore a court of trial has properly evaluated the evidence, the appellate court will generally not interfere with such findings. See the cases of:

(1) Baridan Vs. The State (1994) 1 SC (Pt.5) p. 12′ (2) Bakare Vs. The State (1987) 1 NWLR (pt. 52) p. 579:

(3) Garba Vs. State (1999) 11 NWLR (Pt.627) p. 422 and (4) 1 SC Services Ltd Vs. G.C. Ltd supra at p. 519, paras. E – F.

Therefore, ascription of probative value to the evidence before the court is pre-eminently that of the trial court who saw and heard the witnesses. An appellate court will not lightly interfere with same unless for compelling reasons. See the cases of:

(1) Ebba Vs. Ogodo (1984) 1 SC p. 372: (2) Ogbechie Vs. Omochie (1988) 1 NWLR (Pt. 70) pg 370.

(3) Omoregbe Vs Edo (1971) 1 All NLR p.282 and (4) Ayua Vs. Adasu (1992) 3 NWLR (Pt.231) p. 598.

Such compelling reasons are as follows:

(a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or

(b) If the finding is an interference from established facts so that an appellate court is in as vantage a position as the trial court to draw its own conclusions or

(c) If the trial court has applied wrong principles of law or

(d) When the decision of the trial Court has occasioned a miscarriage of justice.

A decision is perverse where it is persistent in error, different from what is reasonable or required. Where the Judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See the cases of:

(1) Atolagbe Vs. Shorun (1985) 1 NWLR (Pt. 2) p. 360; (2) Nwosu Vs. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) at p. 225;

(3) Eqba Vs. Appah (2005) 10 NWLR (pt. 934) p. 464 and (4) Oju L.G. Vs. INEC (2007) 14 NWLR (Pt.1054) p. 242.

Where the evaluation and findings of the trial Court as in the instant case were not perverse having been borne out of the evidence adduced before it, a miscarriage of justice can not be occasioned.

As can be gleaned from the printed record of proceedings in the instant case. I am at one with the evidence adduced at trial by the prosecution, the findings and conclusions of the learned trial Judge. I have also considered the points of contentions of both learned counsel under these issues. All the issues are indeed contiguous. I therefore do not want to belabour the points. Suffice it for me to conclude that. I am unable to find anything on the record which suggests positively that the Appellant was not rightly convicted as charged. From the record, it is glaring that the learned trial Judge in his judgment took into account matters which he ought to have taken into account, and did not shut his eyes to the obvious. He drew the right inferences from adduced evidence.

This Court has no reason to interfere with the findings of the trial Court in the instant case as the conclusions reached by it were not perverse, and no miscarriage of justice has been occasioned to the Appellant.

On the issue of motive, the provisions of the law are very clear under Section 9 of the Evidence Act that, although proof of motive on the part of an accused in an offence charged is not a “sine qua non” to his conviction for the offence. However, if there is availability of evidence of motive, it is not only a relevant fact but also admissible in law. See the cases of:

(1) Ishola Vs. The State (1978) 9 – 10 SC p. 81 at pgs. 104 -105 and (2) Ubani Vs. The State (2003) 18 NWLR (Pt. 851) p. 224.

The motive for the burning of the court building by the Appellant in the Instant case was to prevent his trial in the suits pending against him before that court.

Applying the above reiterated principles to the facts in the instant case, it can not be disputed that the evidence of all the prosecution witnesses before the trial Court was positive, cogent, compelling and irresistible, that the Appellant was responsible for the burning of the building in question. This is incompatible with the denials of the Appellant and his innocence. The Appellant did not give any evidence of co-existing circumstances which can weaken such inference. See the cases of:

(1) The State Vs. Kura (1975) 2 SC p. 83 at p. 89 and (2) Ijioftor Vs. The State supra.

There is no doubt the circumstantial evidence in this case has proved beyond reasonable doubt that the Appellant was responsible for the burning. The Appellant was properly convicted by the trial Court for the offence with which he was charged before that Court, that is, causing mischief by fire contrary to the provisions of Section 337 of the Penal Code.

From all that I stated above, issues two, three and five fail. They are hereby resolved against the Appellant and in favour of the Respondent.

ISSUE FOUR

Whether the learned trial Judge erred in law when he rejected the defence of alibi raised by the Appellant and thereafter misdirected himself on the facts and convicted the Appellant?

The learned counsel for the Appellant contended that the defence of alibi raised by the Appellant was at the earliest opportunity. Although the statement of the Appellant to the Police was not in evidence, the trial Court held that he did not raise it at the earliest opportunity to the Police, meaning that the learned trial Judge relied on evidence that was not properly before His Lordship. However, in the evidence adduced on oath, it became clear that the Appellant raised the defence of alibi which the Investigating Police Officer did not investigate. What is more, the issue of whether the Appellant was at home at 3:00 a.m on 26/11/2002, the night the crime was allegedly committed was an issue at variance with the charge. Thus the omission of the actual time the offence was allegedly committed in the charge offends the provisions of section 36(6) of the Constitution of the Federal Republic of Nigeria 1999, This had occasioned a miscarriage of justice to the Appellant. It is trite law that where evidence does not support a charge, an accused is entitled to a discharge and acquittal. On this legal position, reference was made to the cases of:

(1) Attorney General Vs. Charrai (1905) 1 All NLR p. 200 and (2) Omogodo Vs. The State (1981) 5 SC. P. 5 at pgs. 27 – 28.

In his reply under this issue, the learned counsel for the Respondent submitted that the trial Court rightly considered and rejected the defence of alibi put up by the Appellant. It is settled law that, for the Appellant to benefit from the defence of alibi, it must be shown that he raised it timeously.

In the case of: Esangbedo Vs. The State (1989) 7 SCNJ p. 10 at p. 19, the Supreme Court held that, where an accused person stated that he was not at the scene of crime at the material time the offence was allegedly committed, this being a matter especially within his knowledge, the law requires that for his defence of alibi to succeed and in raising the doubt in his favour, an accused person ought to do certain things.

He ought to give such details and particulars of his whereabout so that the Police can investigate. This is the evidential burden on him in his defence of alibi.

In the instant case, the Appellant in his evidence under cross-examination stated that in his statement volunteered to the Police, he did not state that he was at home at 3:00 a.m on 26/11/2002, the night the offence was allegedly committed. Reference was made to page 24 lines 17 to 21 of the record of Appeal. Merely stating that he was at home on the day of the incident did not automatically entitle him to the defence of alibi. It is a settled principle of law that for a person to take advantage of this defence, he must give a detailed particularization of his whereabout on the crucial day of the incident. Such will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). It is immaterial that the statement of the accused was not in evidence before the court. Indeed in the instant case, it was on the application of the Appellant that the case for the prosecution was closed without the evidence of the prosecution’s witness through whom his statement would have been tendered. The Appellant only gave an explanation of his whereabouts between 12:00 noon and 12:30 p.m on the day in question. He did not mention to the Police his whereabout from 12:31 p.m to 3:00 a.m when the Incident occurred. It was very clear that the defence of alibi

raised by the Appellant was vague, porous and could not avail the Appellant; it was an after-thought.

It is settled law that in criminal trials, it is the bounding duty of the court to consider all the defences especially those raised by the accused who is charged with an offence. No matter how weak or stupid a defence raised by an accused may appear, it must be properly and adequately considered. See the cases of:

(1) Apishe Vs. The State (1971) 1 All NLR p. 50- (2) Williams Vs. IGP (1965) NMLR p. 470 and

(3) Uwaekweghinya Vs. The State (2005) 9 NWLR (Pt. 930) p.227.

The law is clearly that, if an accused person puts forward the defence of “alibi”, it simply means he was somewhere else and not at the scene of crime when the offence with which he is charged was committed. The defence raised by him does not foist on him the responsibility of proving the answer thereto. To put it in a different way; the onus is not on him to prove that defence but on the prosecution. Therefore, a plea of “alibi” by an accused person must not only be investigated but must be proved. The standard of proof is equally that of proof beyond reasonable doubt that the accused was not only present at the scene of crime but that he committed the offence. See the cases of:

(1) R v. Modem (1947) 12 WACA p. 224; (2) State Vs. Obinga (1965) NMLR p. 170: (3) Adedeji Vs. State (1971) 1 All NLR p. 75;

4) Peter Vs. State (1997) 3 NWLR (Pt.496) p.625 and (5) Dogo Vs. State (2001) 3 NWLR (Pt.699) p.192.

The above general principle of law be that as it may, even though it is the duty of the prosecution to check on a statement of “alibi” by an accused person and disprove the “alibi” or attempt to do so, there is no inflexible and or invariable way of doing this. See the cases of:

(1) Queen Vs. Turner (1957) WRNLR p.34; (2) Yanor Vs. State (1965) NMLR p. 337 and

(3) Archibong Vs. State (2006) 14 NWLR (Pt. 1000) p. 349.

Although the onus is not on an accused person to prove the defence of “alibi”, it IS his duty to raise the defence promptly and properly. The law is therefore that it is not enough for an accused to raise the defence of “alibi”

casually, at large or as a last resort as done by the Appellant, in the instant case. He must give adequate particulars of his Whereabouts at the time of the commission of the offence to assist the Police to make a meaningful investigation of the “alibi”. If the accused said he was in a particular locality or with a particular person(s), he must give a clue as to the specific place, time, the names and/or addresses of who to contact and the relevant period he was away from the scene of crime. For, the Police who are saddled with the constitutional duty of investigation of crime among others would however not be expected to go on a wild goose chase for them to be seen to be discharging this duty. See the cases of:

(1) Yanor Vs. State supra: (2) Njovens Vs. The State (1973) 5 SC p. 17; (3) Obiode Vs. The State (1970) 1 All NLR p. 35 and (4) Balogun Vs. A.-G., Ogun State (2002) 6 NWLR (Pt. 763) p. 512.

In the instant case, the defence of “alibi” was, raised by him casually only at trial. His learned counsel conceded that in the statement of the Appellant to the Police, the defence of “alibi” was not raised so as to enable the Police

investigate same appropriately. It is clear that the defence of “alibi” being put forward by the Appellant is a glib one not worthy of positive consideration.

In my humble view, the attempt to smuggle in the defence of “alibi” for the first time so to speak in this appeal can not work. Consequently, issue four fails, it is hereby resolved against the Appellant and in favour of the Respondent.

On the whole, after a careful consideration of the printed record of appeal and the arguments of counsel, I must and I do reject all the contentions of the learned counsel for the Appellant in this appeal. I am of the view that the trial Court duly considered and evaluated all the evidence relevant to the case as it affected the guilt or otherwise of the Appellant.

In the outcome, though the Appellant was convicted upon circumstantial evidence, it is, nevertheless, proof beyond reasonable doubt of the guilt of the Appellant.

For the above reasons, I dismiss this appeal. I affirm the judgment of the trial Court, the conviction and the sentence of the Appellant.

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Other Citations: (2009)LCN/3086(CA)