Abu Lamidi V. The State (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED AMBI-USI DANJUMA, J.C.A. 

This is an appeal against the judgment of Ondo State High Court sitting at Akure Judicial Division, delivered on 19th May, 2014.

The appellant was arraigned before the Court on one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap 37, Vol. 1 Laws of Ondo State of Nigeria, 2006. Upon arraignment, the appellant pleaded not guilty to the one count charge. To prove the guilt of the appellant, the prosecution called 5 witnesses and tendered Exhibits ‘A’ – ‘A1’, ‘B’, ‘C’ (C1 and C2) and ‘D’. Exhibit A A1 are the extra-judicial statement of the appellant made at State CID, Akure. Exhibit B is the extra-judicial statement of the appellant made at ‘A’ Division Police Station, Owo Exhibit C, C1 and C2 are the photographs and negatives of the deceased. Exhibit D is the autopsy report of the deceased. The appellant gave evidence in his defence and called one witness.

STATEMENT OF FACT
The case for the prosecution was that the appellant and the deceased lived in the house of PW3 at Oshowe Camp via

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Owo. On the 4/8/2014, PW3 served both the appellant and the deceased food before they both went to the farm. The appellant returned from the farm alone, packed his belongings and left for an unknown place.

The deceased was not seen or found alive again. The appellant could not give a satisfactory account of the whereabout or what happened to the deceased on that 4/8/2014.

On the other hand, the appellant denied that he was a friend to the deceased and that he did not go to the bush the day the deceased disappeared. He stated that he did not know anything about the death of the deceased as he was in far away Okene Town in Kogi State when he heard the news that the deceased died, since he had left the camp some time before that 4/8/2014. At the close of trial, the learned trial judge convicted the appellant of murder as charged and sentenced him to death.

Dissatisfied with the conviction and sentence, the appellant appealed to this Court vide notice of appeal dated 8/8/2014 but filed 11/8/2014; containing 10 grounds of appeal.

In compliance with the Rules of this Court, Chief Henry Eshijonam Omu (Esq.) settled the

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appellant’s brief of argument which is undated but filed on 2/10/2012. From the 10 grounds of appeal, learned counsel raised four issues for determination of this appeal, thus:
1. Whether the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the appellant’s conviction for killing Idowu Shaibu having regard to the totality of the evidence before the learned trial judge.
2. Whether the learned trial judge correctly applied the principles of law in his review and evaluation of evidence of both the prosecution and defence to justify his findings and conclusions.
3. Whether the learned trial judge was right to have admitted the appellant’s purported statement exhibit B and treated same as a confessional statement in spite of the fact that same was retracted by the appellant.
4. Whether the trial judge was right to have convicted the appellant when the prosecution failed to disprove the appellant’s ‘alibi’ of being far from the crime scene (in Okene) at the time of the incident.

A. O. Adeyemi-Tuki, Esq. Director of Public prosecution, Ondo State settled the respondent’s brief of argument dated

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29/12/2014 but filed on 9/2/2015.

In the said respondent’s brief, learned counsel distilled four very similar issues for resolution of this appeal, thus:
1. Whether the prosecution proved its case beyond reasonable doubt against the appellant to warrant appellant’s conviction.
2. Whether or not the learned trial judge properly evaluated the evidence of both the prosecution and defence to justify his findings and conviction of the appellant.
3. Whether the learned trial judge was right to have admitted the appellant’s extra-judicial statement exhibit B and whether same was ever treated as a confessional statement.
4. Whether or not the plea of alibi could avail the appellant in the circumstances.

Given the very similar nature of the 2 sets of issue, I shall resolve this case on the four issues formulated by the appellant’s counsel.

ARGUMENT OF ISSUE 1
“Whether the prosecution proved its case beyond reasonable doubt against the appellant as to warrant the appellant’s conviction for killing Idowu Shaidu, having regard to the totality of the evidence before the learned trial judge.”

Addressing this issue,

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learned counsel for the appellant contended that the prosecution did not prove its case beyond reasonable doubt. He referred to the case of Alewo Abogede v. State (1996) 5 NWLR (Pt. 448) 270 to list the essential ingredients of murder as (1) that the deceased died (2) that the death of the deceased was caused by the defendant and (3) that the act or omission of the defendant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable result. He then submitted that the prosecution must prove the co-existence of the three ingredients otherwise, the accused must be acquitted.

He relied on Akpa v. The State (2007) 1 NWLR (Pt. 1019) 500 @ 503 and Ogbu v. The State (2007) 28 WRN 1 @ 8 ratio 1. Furthering he relied on Nigerian Airforce v. Obiosa (2003) 4 NWLR (Pt. 810) 333 @ 253 ratio 16 and Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612 @ 616 ratio 1, to the effect that in every criminal case, the prosecution is under a duty to prove its case, beyond reasonable doubt.

He called in aid the case of Usman Maigari v. The State (2010) ALL FWLR (Pt. 546) 405 @ 427 to list in the three ways of

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proving the commission of a crime as (1) confessional statement, (2) Evidence of eye witness and (3) circumstantial evidence.

He then argued that none of the 5 witnesses called by the prosecution was an eye witness to the death of the deceased. That the only eye witness was the appellant himself and therefore that whatever any witness may testify amounts to hearsay evidence that is inadmissible. He relies on Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641 @ 675.

Counsel submitted that all evidence adduced by the prosecution are hearsay, especially that of PW3, Adisa Isah, which are not of high and credible quality to justify the conviction of the appellant. He called in aid the cases of Onah v. The State (1985) 3 NWLR (Pt. 12) 236 and Oforlette v. The State (2000) FWLR (Pt. 12) 2081 @ 2097 to the effect that to sustain conviction, it must be established beyond reasonable doubt that it was the act of the accused that caused the death of the deceased.

He recited the evidence of PW3 at pages 17 to 18 and referred to the judgment of the learned trial judge at pages 34 to 46 of the record, to submit that the learned trial judge placed undue

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weight to the evidence of PW3, who was not an eye witness to the event of the death of the deceased. He submitted that the trial Court’s conviction of the appellant was majorly on the evidence of PW3 and the curious basis that the appellant failed to offer any explanation as to the non return of the deceased that left with him to the farm.

He referred to the evidence of the appellant as contained at pages 20 to 21 of the record to submit that even though the appellant vehemently denied knowing anything about the deceased, the learned trial judge still prefers the evidence of PW3 who was not an eye witness to the incident, than that of the appellant who was an eye witness. He argued that the evidence of PW3 was both uncorroborated and unreliable and ought not to have been relied on to convict the appellant, since it did not establish the fact that the appellant actually killed the deceased.

Counsel submitted that exhibit D – autopsy report only show that the deceased died from injuries from cuts to the hands and the head but did not contain any thing linking the death of the deceased to the appellant. He relied on the case of Alake v. The State (1992) 9

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NWLR (Pt. 265) 260 @ 272 to submit that the conviction of the appellant was not based on circumstantial evidence but suspicion because neither the blood sample of the deceased was found on property or the person of the appellant nor was there any substantial evidence, that the appellant was with the deceased at the time the deceased died. He called in aid the case of Ansha & Anr. v. State (1998) 2 NWLR (Pt. 537) 246 @ 265 to the effect that circumstantial evidence sufficient to support a conviction in a criminal trial especially murder must be cogent, complete and unequivocal.

He submitted that the inability of the prosecution to lead evidence on what transpired on the day the deceased was killed created a doubt on the case of the prosecution. He then relied on Udosen v. The State (2007) 4 NWLR (Pt. 1023) 125 @ 162 to the effect that there must be a nexus between the act of the accused person and the death of the victim to ground conviction.

He submitted that the evidence relied upon by the learned trial judge to convict the appellant are unreliable and inconclusive since the law is that the prosecution must prove its case by quality evidence. He

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continues that the prosecution failed to prove the cause and manner of death of the deceased and same created a doubt that must be resolved for the appellant. He relied on Gufwat v. The State (1994) 2 NWLR (Pt. 327) 435 at 476. Counsel submitted that even though exhibit D showed that the deceased sustained cuts on his hands and head, that the non tendering of the said weapon at trial is fatal and leaves a big gulf in the prosecution’s case.

Finally on this issue learned counsel relied on the case of Nwachukwu v. State (2001) 33 WRN 182 to the effect that conviction in a case of murder must be based on credible evidence, logical thinking and legal deductions. He urged that this issue be resolved for the appellant.

Reacting, the learned counsel for the respondent submitted that the contention of the appellant’s counsel that the prosecution did not prove its case beyond reasonable doubt is misplaced. He conceded on the three ingredients of the offence of murder and also the three ways to prove the commission of crime as earlier on listed or stated by the appellants counsel.

Counsel then submitted that in proof of the first ingredient of

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murder, the prosecution called PW1, PW2, PW3 PW4 and PW5 who all testified that someone died. That PW3 and PW4 gave evidence that the person that died was Idowu Shiabu and that exhibit C, C1 and C2 (Photographs and negative of the deceased) and also exhibit D (autopsy report) revealed that the person died was Idowu Shaibu.

He referred to evidence of the appellant at lines 20-23 of page 20 of the record of appeal to show that the appellant confirmed that the person that died was Idowu Shaibu, leading the learned trial judge to find as a fact that Idowu Shaibu died as can be seen at page 42 lines 12-15 of the record of appeal. He urge us to hold that the first ingredient has been proved.

On the second ingredient, learned counsel reproduced the substance of PW3 evidence at page 17, lines 5 – 17 of the record of appeal to submit that PW3 evidence is unimpeachable and squarely fixed the appellant to the commission of the offence. Furthering, counsel submit that Exhibits A, A1 and A2 were tendered without objection from the appellant’s counsel and are clearly inconsistent with the appellant’s evidence in Court. For instance, said counsel, at page 21

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lines 7-9, appellant under cross examination, admitted living in the house of PW3 and that PW3 gave him food to eat; whereas in his evidence in chief, at page 20 lines 20-21, he denied knowing the deceased. Again, said counsel, the appellant in Exhibit A1 admitted that he knew the deceased very well and that he and the deceased worked for different people at the camp as can be seen at page 20 lines 3-7 of the record. Counsel submitted that the appellant, also contradicted himself when in one breath, he testified that he left the Oshowe camp on 1/8/2012 and was not in Owo on 4/8/2012, but in another breath vide exhibit “A” he admitted that on 4/8/2012 at Oshowe camp, he went to the farm but did not go with the deceased and that he returned from the farm and packed his clothes before he travelled to his home town in Kogi State. He referred to page 11 lines 5-12 of the record of appeal.

Counsel also submitted that in exhibit ‘B’ appellant’ extra-judicial statement made at ‘A’ Division Police Station Owo, the appellant admitted that he left the camp on 4/8/12. Learned counsel argued that although there was no eye witness account, the appellant was the last

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person seen with the deceased on 4/8/2012 when he and the deceased went to farm and the deceased was not found or seen alive again.

He then relied on Adepetu v. The State (1998) 7 SCNJ 83 at 102; Madu v. The State (2012) ALL FWLR (Pt. 641) 1416 at 1441 and Emeka v. The State (2001) 14 NWLR (Pt. 734) 666 @ 683; to submit that the only irresistible inference from the circumstances presented by the evidence in this case is that the appellant killed the deceased.

He submitted that the trial Court was right to have held that the appellant has a duty to explain what happened in the afternoon when he and the deceased went to the farm and the deceased was not found alive again.

He also submitted that the learned trial Court was right to have invoked the doctrine of last seen to hold that it was the act of the appellant that caused the death of the deceased.

On the third ingredient, counsel submitted that the autopsy report tendered as Exhibit D by the prosecution showed that the deceased died as a result of cuts from sharp objects in his hand and deep gashes on his head as can be seen on page 43 line 17-18 of the record of appeal.

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These, counsel argued led the trial Court to conclude at page 46 lines 7-9 of the record, that the nature of the injuries as captured in Exhibit ‘D’ showed that the person who inflicted them intended to either kill or cause grievous bodily harm to the deceased.

Counsel then submitted that from the forgoing, the prosecution did prove all the essential elements of the charge of murder against the appellant beyond reasonable doubt. He argued that it is not imperative that there must be eye witness account to prove offence of murder and therefore that appellant’s counsel submission vide paragraph 4.08 of his brief is misplaced since it is common ground that the deceased died and that the cause of death was a result of injuries sustained from machete cuts evidence in exhibit ‘D’ counsel reiterated the evidence of PW3 that the deceased and the appellant lived in her house and that the two went to the farm together on 4/8/2012 after she had served them food; and that the appellant returned alone and packed his belongings and left the camp.

Counsel contended that the appellant failed to give satisfactory account of the deceased’s whereabout

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necessitating the invocation of the doctrine of last seen which led to the inference, from all the circumstances of this case, that the appellant killed the deceased. Counsel faulted the appellant counsel’s submission vide paragraph 4.09 of his brief on the ground that the case of Ahmed v. The State (Supra) relied on by the appellant counsel is distinguished from the instant case.

Counsel argued that in Ahmed’s case, appellant extra-judicial statement and his evidence in Court were consistent whereas in the instant case, the appellant’s evidence in Court was not consistent with exhibits A, A1 and B (his extra judicial statements) that were tendered without objection. This, counsel submitted made the case of Ahmed v. The State (supra) inapplicable to this case. He argued contrary to the appellant submission vide paragraphs 4.10 and 14.11 of their brief, that the evidence of PW3 cannot be hearsay evidence and that the cases of Onah v. The State (supra) and Oforlette v. The State (supra) are not relevant to this case.

Furthering, counsel submitted that the appellant’s counsel submission vide paragraphs 4.12-4.15 of their brief is not misplaced

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since the learned trial judge properly evaluated the evidence of both the prosecution and defence before arriving at the just decision. He referred to page 45 lines 9-25 of the record to show that the appellant lied in his evidence leading the learned trial judge to find and conclude as he did at page 45 lines 28-30 and page 46 lines 1-2 of the record.

Learned counsel relied on Nnamdi Osuagwu v. The State (2009) 1 NWLR (Pt. 1123) 523 @ 543 to submit that the issue of evaluation of evidence before a trial Court is a matter of style and the discretion of the trial judge. Further, he called in aid the case of Oladele v. The State (2012) 9 ACLR 93 @ 130-131 to the effect that it is the trial judge that has the singular opportunity of watching the demeanor of witnesses, evaluating the credibility of their evidence and make findings thereon; and that the appellate Court will only interfere when such findings are shown to be perverse. He submitted that the appellant submission at paragraph 4.16 of his brief is equally misplaced since no law provided that evidence in the nature of PW3 in this matter must be corroborated. All the law requires, said counsel, is

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that such evidence of one witness must be cogent, direct, and credible which indeed was the case with the evidence of PW3 as can be seen at page 45 line 28-30 and page 46 lines 1-2 of the record.

Learned counsel also faulted the appellants’ submission at paragraphs 4.17-4.21 of their brief since Exhibit D showed that the deceased died as a result of injuries sustained from the machete cuts to the hand and head as was rightly found as a fact by the learned trial judge at page 46 lines 7-9 of the record of appeal.

Counsel submitted that the circumstantial evidence of the prosecution is to the effect that the deceased was last seen alive with the appellant by PW3 on 4/8/2012 and the inconsistencies and contradiction in the evidence of the appellant as captured in paragraph 4.4 of the respondent’s brief showed that the appellant was not telling the truth. Counsel argued that the circumstantial evidence of the prosecution is sufficient, unequivocal and leads to the irresistible conclusion that it was the appellant that killed the deceased. Further, in response to the submission of the appellant at paragraphs 4.22-4.23 of his brief, counsel

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submitted that all the ingredients of the offence of murder has been proved beyond reasonable doubt by the prosecution and that it was the evidence of the appellant that was inconsistent and contradictory. In response to paragraph 4.24 of the appellant’s brief, counsel relied on the case of Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561 to submit that non-tendering of the weapon used in killing the deceased is not fatal to the case of the prosecution.

Finally, on this issue, counsel relied on the case of Babarinde v. State (2013) ALL FWLR (Pt. 622) 1731-1777 paragraphs F-G to the effect that proof beyond reasonable doubt does not entail proof beyond iota of doubt otherwise it would be akin to allowing fanciful possibilities to defeat the course of Justice. He urged us to resolve this issue for the respondent.

ISSUE TWO
“Whether the learned trial judge correctly applied the principles of law in his review and evaluation of both the prosecution and defence to justify his findings and conviction.”

Addressing this issue, counsel for the appellant contend that the learned trial judge did not correctly apply the principles of law in his

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review and evaluation of the evidence of parties to justify his findings and conclusion as the prosecution led no credible, direct eye witness or circumstantial evidence in this matter. He then relied on the case of Akinbisade v. The State (2006) 17 NWLR (Pt 1007) 184 at 193 ratio 9 to submit that there was no evidence during trial attesting to the fact that the death of the deceased was as a result of the acts of the appellant since no evidence was elicited by the prosecution of any scuffle, confrontation or fight at all between the appellant and the deceased.

Counsel argued that even the evidence of the prosecution’s star witness – PW3 does not bear that fact out. He relied on Umoru v. The State (1990) 3 NWLR (Pt. 138} 363 @ 373. to the effect that the law is that in homicide case, the prosecution must prove not only the cause of death but that the act of the accused caused the death of the deceased which the prosecutor has failed to do in this case and the finding of fact by the learned trial judge in that regard at page 44 of the record can only be misdirected.

He submitted that it was unfortunate that the learned trial judge believed the

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unreliable and uncorroborated evidence of PW3 that the appellant and the deceased left for the farm together on 4/8/12 against the contrary evidence of the appellant. Furthering, counsel submitted that the trial judge finding that the appellant did not offer any explanation as to the non-return to the camp of the deceased who left with him to the farm the afternoon he was last seen alive, placed on the appellant the onus to prove his innocence against the constitutional provision which placed that duty or onus on the prosecution and that same was wrong since it is not the duty of the appellant to prove the fact of the circumstances of the non – return of the deceased on 4/8/2012.

Again he faulted the findings of fact by the learned trial judge at page 45 of the record, to submit that it is not the duty of the appellant to show why PW3, an illiterate Ebira Woman like the appellant would tell lies against him, resulting in his conviction. Counsel submitted that since the evidence of PW3 does not support the findings and conclusions reached by the learned trial judge, that the findings are both perverse and prejudicial to the appellant as they

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have no legal basis.

He called in aid the case of Agbu v. Agbu (2007) 1 NWLR (Pt. 1016) ratio 1 to the effect that the Court has no business going outside the record to fish for evidence. He submitted that the learned trial judge misdirected himself when he held at page 43 of the record of appeal that Exhibit A was inconsistent with Exhibit B and therefore that the appellant was telling lie when he said that he left the camp for sometime before the deceased died as there was no other more cogent and reliable evidence led by the prosecution to show that the appellant was present at the time the deceased died.

Learned counsel argued that the learned trial judge was wrong to have held that Exhibits A and B are confessional statements of the appellant since the appellant retracted exhibit B and that same was prejudicial to the appellant’s case.

Counsel argued that it was wrong for the learned trial judge to have held at page 45 of the record of appeal that it is incumbent on the appellant to have provided his source of information he was alleged to have purportedly given the police at Ogaminana to the effect that a dead body was found in his farm and he was

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suspected of killing the person, and that he learnt the person died when he was fighting with another person, so that it can be investigated, to submit that there was no evidence that the police asked for such information during the investigation and the appellant refused to provide same. This finding said counsel, by the learned trial judge was prejudicial to the case of the appellant.

Again, counsel contends that the findings of the learned trial judge at page 43, second and last paragraphs therein are perverse and prejudicial to the appellant since the learned trial judge made those findings on the uncorroborated evidence of PW3 without subjecting same to any independent reality test whatsoever. Furthering, counsel argued that the learned trial judge misdirected itself when it held at page 45-46 of the record that the appellant has a duty to explain what happened in the farm the afternoon he and the deceased went to the farm and the deceased was not found alive again, thereby placing burden of proof of his innocence on the appellant and used that to convict the appellant by making a sweeping conclusion/finding that the prosecution has successfully

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proved its case.

Learned counsel also referred to the finding and conclusion of the learned trial judge at page 46 of the record of appeal to contend that the prosecution never proved by evidence that it was the act of the appellant that killed the deceased to justify the holding therein that the third ingredient of the offence of murder have been established. Furthering, counsel submitted that the absence of any evidence that the death of the deceased was accidental is no justification for the learned trial judge to place culpability on the appellant, rather, that it shows that the prosecution has failed to prove the guilt of the appellant as regards the manner of the death of the deceased. He relied on Umoru v. The State (supra) to the effect that “if the evidence merely establishes that the act of the accused could have caused the death of the deceased, and not that it certainly did, then the prosecution has not proved its case as required by law”.

Counsel referred to page 41 of the record to submit that the learned trial judge found that while PW2 said he was told that the deceased and the appellant went to the farm on 5/8/2012, PW3 gave

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evidence that it was on 4/8/2012 that they went to the farm; while PW3 said the appellant was brought back before the deceased corpse was discovered, PW4 said he was the first to discover the corpse and he then informed the villagers and it was later that the appellant was arrested in Kogi State, that Exhibit “D” put the probable date of death of the deceased at 2/8/2012 whereas the prosecution led evidence suggesting 4/8/2012 and that the learned trial judge found as a fact that PW3’s evidence that the appellant was brought back before the corpse was discovered cannot be right because PW4 said also he was the person that discovered the corpse; to the effect that these are inconsistencies and contradictions which unfortunately, the learned trial judge held to be irrelevant rather than resolve same for the appellant.

He relied on the cases of Adeoti v. The State (2009) ALL FWLR (Pt. 454) 1450; Agbo v. The State (2006) ALL FWLR (Pt. 309) 1380 and The State v. Ajie (2000) FWLR (Pt. 16) 2831 to the effect that an unresolved material contradiction must be to the benefits of the accused.

Counsel argued that the holding of the learned trial judge that

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the above contradictions are irrelevant suggests and attest to the fact that the Court had already presumed the appellant guilty of the offence as charged in contravention of the appellant constitutional right of fair hearing. Counsel submit that in the absence of an eye witness evidence, it was wrong for the learned trial judge to have chosen which evidence to believe which turned out to be evidence prejudicial to the appellant.

Counsel argued that the “doctrine of last seen” as illustrated in Peter Igbo v. The State (1978) 3 SC 8 was misapplied to this case as it must be shown that the deceased was actually last seen with the appellant before his death, not just purportedly last seen as suggested by the uncorroborated evidence of PW3 and the circumstantial inference of the learned trial judge tainted by suspicion. Counsel argued that the legal basis of the conviction of the appellant is fundamental by flawed and urged us to set aside the conviction. He submitted that Exhibit D only stated the likely cause of death as cuts on the hands and head, but did not connect the appellant to the death of the deceased.

He then relied on the case of Audu v.

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State (2003) 7 NWLR (Pt. 820) 516 at 526 ratio 8 to the effect that a medical evidence would be admissible in murder case only where it unequivocally establishes the cause of death and provides the necessary nexus between the death of the deceased and the act of the accused person. Finally, on this issue, counsel relied on the cases of Ariche v. The State (1993) 6 NWLR (Pt. 302) 752 at 754 ratio 5 and Abacha v. The State (2002) 11 NWLR (Pt. 779) 437 at 462 ratio 19 to the effect that in our criminal Justice system, the onus is always on the prosecution to prove its case beyond reasonable doubt. He concluded that the prosecution has failed to do so in this case and urged us to resolve this issue for the appellant.

In response, learned counsel for the respondent submitted that PW3 gave evidence that the appellant and the deceased lived in her house at Oshowe camp and that she gave both the appellant and the deceased food to eat before they left for farm on 4/8/2012. He submitted further that PW3 gave evidence that the appellant returned from the farm alone, packed his belongings and left and that when she inquired of the deceased, the appellant told her

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that they both had got a job to do somewhere, and the deceased asked him to join him there. The deceased was not seen alive again and his corpse was discovered days later in the farm. Counsel argued, that consequent upon this unchallenged facts, the learned trial judge evaluate same and invoked the doctrine of last seen and applied same correctly and reached the conclusion contained at 44, lines 1-7 of the record of appeal.

Counsel contends that since the appellant did not give a satisfactory explanation to what happened to the deceased in the farm and his non-return to the camp with him on 4/8/2012, the learned trial judge was right to have invoked the doctrine of last seen.

He relied on Mohammed v. The State (2007) 11 NWLR (Pt. 1045) 303 at 329-330 paragraphs F-D, and Adepetu v. The State (supra).
Counsel submitted that the submission of the appellant vide paragraph 5.06 of their brief is misconceived because the decision of whose testimony to believe and the ascription of probative value to evidence led are primarily that of the learned trial judge who had the opportunity of seeing, hearing and assessing the witnesses.

He

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called in aid Silas Sule v. The State (2009) 17 NWLR (Pt. 1169) 33 at 58 to submit that it is the appellant that misconstrued the findings of the Court. In response to paragraphs 5.07-5.08 of the appellant brief, counsel submitted that evidence on record showed that PW3, DW1 and DW2 are all Ebiras and therefore the learned trial judge was right in his view that PW3 and the appellant are from Ebira extraction and as such the review of evidence of PW3 and conclusions reached thereto cannot be said to be imported evidence.

He referred to appellants cross examination at page 21 lines 7-9 as confirming PW3 evidence that appellant and the deceased lived in her house and that she gave them food to eat. Therefore, said counsel, the learned trial judge was right in its view that the appellant did not show why PW3 would lie against him.

In response to paragraph 5.11 of the appellants brief, counsel submit that same is mischievous since there is no where the trial Court treated Exhibits A and B as confessional statements. Counsel argued that exhibits A, A1 and B were tendered as exhibits by the prosecution without any objection by the appellant.

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Therefore, said counsel, the retraction of Exhibit B in his testimony in Court is belated, an afterthought and an attempt to mislead the Court, which the trial Court rightly discountenanced.

On paragraph 5.22-5.27 of the appellant brief, counsel repeated his submission in the respondent’s submission at paragraphs 4.2-4.5 of respondent’s brief. Counsel submitted that the contention of the appellant at paragraphs 5.22-5.27 of their brief is misconstrued since the contradiction on the prosecution case are neither material nor fatal to its case as the trial Court rightly pointed out that same were not relevant to the central point in the case.

He called in aid the cases of Afosi v. State (2012) ALL FWLR (Pt. 612) 1723 at 1727 paragraphs D-E; Eugene Ibe v. State (1992) 5 NWLR (Pt. 244) 642 at 649 paragraph B and Imo v. State (2001) 1 NWLR (Pt. 694) 314 at 319 paragraphs A-C, to submit that minor discrepancies in the case of the prosecution will not vitiate the trial. In response to paragraphs 5.28-5.30 of appellant’s brief, counsel submitted that the doctrine of last seen which postulates that if a person who was last seen alive in the company of

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another is found dead, that other person whose company the deceased was last seen alive in law is presumed to bear the full responsibility of the death of the deceased, was rightly applied by the learned trial judge in this case. Further, counsel submit that the principle of last seen is usually applied where there is no explanation as to what happened to or caused the death of the deceased last seen in company of the accused person as in this case, except the accused explains to the satisfaction of the Court what really happened or caused the death of the deceased.

He relied on Nyoku v. State (2013) ALL FWLR (Pt. 689) 1072 at 1084 paragraphs G-H; Madu v. State (2012) ALL FWLR (Pt. 641) 1416 at 1441 paragraph C; 144 paragraphs D-F. Contrary to the contention of the appellant paragraphs 5.31-5.33 of his brief, counsel submitted that the prosecution proved its case beyond reasonable doubt as the trial judge rightly acknowledged as can be seen at page 46 lines 10-12 of the record of appeal.

Finally, counsel relied on Babarinde v. State (supra) to submit that proof beyond reasonable doubt does not mean proof beyond every iota of doubt, otherwise it

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will be akin to allowing fanciful possibilities to defect the course of Justice.

ISSUE 3
“Whether the learned trial judge was right to have admitted the appellant’s purported statement – Exhibit “B” and treated same as a confessional statement in spite of the fact that same was retracted by the appellant.”

Learned counsel for the appellant contends that the trial Court was wrong to have admitted Exhibit B as confessional statement despite the fact that the appellant retracted same. He equally contends that the trial Court wrongly relied on the said Exhibit B to convict appellant without recourse to independent credible, cogent or expert evidence. He called in aid the case of Folorunsho Kazeem v. The State (2009) (Pt. 465) 1749 paragraphs D-E, to submit that where an accused person wishes to impeach his earlier extra-judicial statement, he is expected to establish that his earlier confessional statement cannot be true because (a) that he was not correctly recorded, (b) that he infact did not make the statement, (c) that he was unsettled in mind at the time he made the statement and (d) that he was induced to make the statement. He then

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submit that at page 21 of the record, the appellant gave evidence that he did not make any statement at Nigeria Police ‘A’ Division Owo, Ondo State where exhibit B is purportedly made, but only made a statement at State CID, Akure and yet the learned trial judge referred to exhibit B in his judgment as confessional statement as can be seen at second paragraph of page 45 of the record.

Counsel, then, relied on Folorunsho Kazeem v. The State (supra) at 1776 paragraphs D-F. to the effect that where the above situation arise, the Court is expected to look out for other evidence in circumstance which makes it possible that the confession is true. Counsel submitted that the learned trial judge did not heed this caution, but went ahead to convict the appellant on the content of Exhibit B at the expense of more credible evidence led by the appellant. He called in aid the case of Adeoti v. The State (Supra) to the effect that where it is shown that the extra-judicial statement of the accused is inconsistent with his testimony in Court, the Court should disregard both evidence as unreliable. He contends that instead of rejecting Exhibit B, the trial Court relied

31

on same to convict the appellant. He urged us to resolve this issue for the appellant.

Reacting, learned counsel for the respondent referred to page 15, lines 24-27 of the record of appeal to submit that exhibit B was made by the appellant at ‘A’ Division Police Station, Owo and was tendered without objection through PW2 (CPL Famoriyo Ola) from the same ‘A’ Division Police Station, Owo. Counsel submits that the appellant’s retraction of exhibit B in his oral testimony in Court is an afterthought. In answer to appellants submission vide paragraph 6.03 of his brief, counsel submitted that the trial Court did not rely on exhibit B to convict the appellant, but on a thorough evaluation of the totality of the evidence led by respective parties and findings made thereon. Also, in answer to paragraphs 6.04-6.07 of the appellant’s brief, counsel submitted that the appellant cannot impeach his earlier extra-judicial statement when he was admitted to the Court that it was his statement by not objecting to it when it was tendered as exhibit.

Therefore, said counsel, the case of Folorunsho Kazeem v. The State (supra) cited by the appellant does not avail the

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appellant. Counsel submit further that there is nowhere at page 45 of the record of appeal referred to by the appellant did the trial judge refer to exhibit “B” as a confessional statement which it relied on to convict the appellant. In response to paragraphs 6.08-6.11 of appellant’s brief, counsel submitted that the appellant’s contention that the trial Court ought to have regarded the appellant’s evidence as unreliable and should not have acted on his sworn evidence that it has not been shown how it occasioned a miscarriage of Justice to the appellant. He urged that this issue be resolved for the respondent.

ISSUE 4
“Whether the learned trial judge was right to have convicted the appellant when the prosecution failed to disprove the appellant’s alibi of being far from the crime scene (in Okene) at the time of the inicident.”

Arguing this issue, learned counsel for the appellant contended that the defence of alibi connote the physical impossibility of a person or an accused to be somewhere else and at the same time at the scene of a crime. He furthered that a successful plea of alibi is a complete defence and as such must be raised by the

33

accused person timeously and disproved by the prosecution. Counsel submitted that the accused person who is relying on alibi as a defence must also furnish the police with sufficient particulars of his whereabouts on the day in question to enable same investigated.

He relied on the case of Adebisi Adesakin v. The State (2013) ALL FWLR (Pt. 700) 1308 at 1336-1337, paragraphs E-A to the effect that raising the defence of alibi mid trial failure to supply sufficient particulars at the earliest opportunity defeats the defence. He then submitted that the appellant in the instant case did raise the defence of alibi timeously and furnished particulars of his whereabout in his statement to the police, but that the police refused to investigate same and also the trial Court did not consider same in its judgment.

Counsel contend that the appellant raised the defence of alibi in his evidence in chief when at page 20 of the record of appeal, he stated that he was at Okene when he heard that the deceased had died and that he left the camp for sometime before the death of the deceased. He faulted the learned trial judge’s findings of fact at page 43, first

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paragraph that while in Exhibit ‘A’ the appellant said he left the camp on 1/8/2012 in Exhibit B, the appellant said he left the camp on 4/8/12, resulting in inconsistency upon which the Court held that the defence of alibi has been disproved.

Counsel relied on the case of Shalla v. The State (2007) 18 NWLR (Pt. 1066) 240 @ 263-264, lines H-A and 279 paragraph F and Edibo v. The State (2007) 13 NWLR (Pt. 1015) 306 paragraph A-C, to the effect that a Court is under a duty to consider every available defence open to an accused whether raised by the accused person or not and failure to do so will entitle the appellate Court to consider such defence on appeal. He relied on the cases of Adebisi Adesakin v. The State (supra); Nse Udo Nuta v. The State (2008) ALL FWLR (Pt. 397) 1; Shalla v. The State (supra) to submit that a Court will be shying away from this legal responsibility if it declines to consider a defence because it is stupid, foolish or unreasonable, improbable and unfounded.

Learned counsel contends that had the trial Court considered the appellants plea of alibi, he would have been exculpated since he was in Okene at time the crime was

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committed at Owo.

Responding, learned counsel for the respondent submitted that the submission of the appellant vide paragraphs 7.02 -7.11 of his brief of argument is misplaced since mere allegation by the appellant that he was not at scene of offence is not enough to set up the defence of alibi. Counsel contends that the law placed a duty on the appellant to disclose facts with necessary details and particulars of his alibi at the earliest opportunity so as to put the burden on the police to investigate same.

Further, counsel contended that the inconsistency in exhibits A, A1 and B as to whether he left the camp on 1/8/2012 or 4/8/2012 together with the fact that he did not give specific details and particulars of plea of alibi, did not make the police to investigate same. He argued that even in his evidence in chief, the appellant did not disclose sufficient detail and particulars to enable the police investigate the alibi he set up and the police cannot be expected to go on a wild goose chase in the name of investigating alibi.

He relied on Idowu Salami v. The State (1980) 7 SC (Pt. iii) 89 at 93 and Balogun v. The State (2002) 4

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SCM 34, to the effect that alibi cannot be raised at large, devoid of specific and detailed particulars. He urged us to resolve this issue also for the respondent.

RESOLUTION OF ISSUE 1
It is quite elementary in law that proof beyond reasonable doubt does not mean proof beyond all doubt, or all iota or shadow of doubt. In other words, it means establishing the guilt of the accused with compelling and conclusive evidence. See Nwaturuocha v. The State (2011) 3 SCNJ 148 and Nnamdi Osuagwu v. The State (2013) 1 SCNJ 33.

As to whose duty it is to prove its case beyond reasonable doubt, the Supreme Court had occasion to re-emphasize that age long position of the law in the same case of Nnamdi Osuagwu v. The State (supra) at 56 paragraphs 20-25, thus:
“It is the duty of the prosecution (respondent) to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required a single witness can easily establish a case beyond doubt”.
It is clear that it is the duty of

37

the prosecution to prove the guilt of the accused person beyond reasonable doubt to be able to secure conviction. It is worthy of note that in the instant case parties are ad idem that circumstantial evidence is one of the three ways to prove the commission of a crime, and that same is usually resorted to in the absence of evidence of eye witness account or accused person’s voluntary confessional statement. See Dele v. The State (2011) 1 NWLR (Pt. 1229) 508-530.

Since either of the three ways of proving the commission of a crime can on its own, when established, ground a conviction, afortiori, the process or ingredients of establishing each one of them must differ. A careful perusal of the case of the prosecution will show that it relied basically on circumstantial evidence to establish its case and that the learned trial judge predicated its judgment on same. However, the position of the law is very clear that before relying on circumstantial evidence to convict an accused, such circumstantial evidence must clearly suggest that the accused was the person who committed the offence and that no one else could have committed the offence. See Adei v.

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The State (1980) 1-2 SC 116, Omogodo v. The State (1981) 5 SC 5 and Olusola Adepetu v. The State (1998) 7 SCNJ 83.

The complaint of the learned counsel for the appellant against the judgment vide this issue one is that the circumstantial evidence adduced at the trial did not point irresistibly to the guilt of the appellant and that the evidence of the 3rd prosecution witness Adisa Isah, should not have been accepted as it is a hearsay evidence. I have carefully gone through PW3’s evidence at page 17 of the record of appeal and I am unable to agree with learned counsel for the appellant that same amounted to hearsay evidence.

I shall reproduce the portion of PW3’s evidence that appears relevant to this issue of hearsay rule, hereunder.
“PW3 states I am, Adisa Isah. I live Oshowe camp via Owo. I am a farmer I know the defendant. I once housed him at Oshowe camp, Owo, I remember 4th August, 2012, the defendant and Idowu Shaibu who was also living with me at the camp went to the farm together. Later the defendant came back to the camp, I asked him where Idowu was and he told me that Idowu will come to the camp later on.

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I later saw the defendant parking (sic) his clothes to go somewhere. The defendant then went to Ihima his hometown. The defendant told me that he and Idowu got another job somewhere and he told him to go there while he will join at the place of the job later on. When we did not see Idowu we were looking for him. The dead body of Idowu was later discovered in the farm…..”

It is unfortunate that the learned counsel only made a blanket submission that PW3’s evidence not being that of an eye witness amounts to hearsay, without pointing to specific pieces of evidence of PW3 that is hearsay. Nevertheless, the learned counsel may be referring to PW3’s testimony as to her enquires from the appellant and what the appellant told her, that cannot be hearsay. It was only a narration of the discussion she had with the appellant. The rule against hearsay was enunciated by the privy-council in the celebrated case of Subramanian v. Public Prosecutor (1956) 1 WLR 965, thus:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay it is hearsay and inadmissible when the object of the evidence is to

40

establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said.”
See also Management Enterprises v. Otusanya (1987) 2 NWLR (Pt. 55) 179 and Judicial Service Committee v. Omo (1990) 6 NWLR (Pt. 157) 407. I am unable to see how the evidence of PW3 contained at page 17 of the record of appeal amounted to hearsay evidence.

On the issue of evaluation of evidence, it is trite law that a trial judge must give reasons for believing or not believing a witness. It is not good for judge to just say ‘I believe” or ‘I do not believe” a witness. He should state the basis of his believing or not believing a particular witness. See Atanda v. Ajani (1989) 9 NWLR (Pt. 111) 511; Nwoke v. Okere (1994) 5 NWLR (Pt. 343) at 175 and Iheanacho v. Ejiogu (1995) 4 NWLR (Pt. 389) 324 at 340.

A careful perusal of the judgment of the learned trial judge especially as contained at pages 41 to 43 of the record of appeal shows clearly that he evaluated all pieces of evidence led by respective parties at trial and disclosed reasons for

41

preferring one witness evidence to another. For instance at page 42 paragraph 2, the learned trial judge asked himself “was it proved that it was the defendant that caused the death of Idowu Shaibu? He then reviewed the case of both the prosecution and that of the defence in that paragraph and then made a findings of fact in the subsequent paragraph 3 of pages 42 and 43 of the record thus:
“It would be necessary to make findings of fact. PW3 gave evidence that the defendant and Idowu Shaibu went to the farm the day Idowu Shaibu disappeared. Both were living with her. The defendant conceded that he was living with PW3. In contradiction to the evidence of PW3 on the matter the defendant said he did not know the deceased and that he did not go to the farm with him the day he disappeared. It is really not difficult for me to believe PW3 on the score that she served lunch for both the deceased and the defendant the day both of them went to the farm together. I also believe the account of PW3 that the defendant came back to the camp alone and that he immediately packed his properties and left. The defendant was not telling the truth when he said he had left the

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camp for same time before Idowu Shaibu died. In Exhibit A the defendant said he left the camp on 1st August, 2012, while in Exhibit B, he said he left the camp on 4th August, 2012. The evidence given by the defendant that he told the police at Ogaminana that a dead body was found in his farm and he was been suspected of killing the person and that he learnt that the person died when he was fighting with another person shows that the defendant knew more than he gave evidence in Court.”

I am unable to fault the evaluation of evidence and finding of facts by the learned trial judge at pages 41 44 the record of appeal.

On the learned counsel’s submission that the learned trial judge’s holding that the appellant has a duty to explain what happened to the deceased that he went to the farm with amounts to asking the appellant to prove his innocence. I do not think so. I have held earlier in this judgment that it is trite law, that while the accused person is presumed innocent by law, the prosecution has a duty to prove the guilt of the accused person beyond reasonable doubt. This burden is always on the prosecution. See Olusola Adepetu v. The State

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(supra) and Nnamdi Osuagwu v. The State (supra).
Nevertheless, once the prosecution succeeds in establishing a prima facie case especially on specific issues, the accused may be required to make or furnish some explanations on those issues. This does not mean calling on him to prove his innocence.
In the case of Olusola Adepetu v. The State (supra) at 97 paragraphs 30-35, Supreme Court had occasion to explain the position, thus:
“In a criminal case the burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. Generally, there is no duty on the accused to prove his innocence.
Circumstances may however arise where some explanation may be required from the accused person such as where apparently demining circumstances are established against the accused person. I give a illustrations. A is charged with burglary, he was found in the hall of the house where the burglary took place without having been asked to come there. It is incumbent on him as a matter of common sense, though not as a matter of law, to give a satisfactory explanation of his presence and if he fails to do this a Court will be justified

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in inferring the existence of the requisite guilty intent.”
At page 102, paragraphs 5 and 10 the apex Court continues, thus:
“The facts proved in the case on hand established in my respective view a prima facie case requiring the appellant as a matter of common sense to explain what he did with the deceased that night when they both left Mesiogo restaurant. Where did he take her to? What did he do with her there? The appellant made false statements to the police which were admitted in evidence all of which are, in material particulars inconsistent with his evidence at trial. The learned trial judge had no problem in rejecting his evidence and that of his witness. I see no reason to disturb or interfere with the findings of fact made by the learned trial judge and affirmed by the Court below as these findings were based on the credible evidence adduced at the trial. The appellant rather than give explanation as required of him in the circumstance of this case restored to lying.”

Thus, having been established that the appellant after eating that afternoon with the deceased, left for farm with the deceased and returned to camp without the

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deceased, packed his belongings and left to an unknown destination and the deceased was not seen alive, again, places a duty on the appellant to explain what happened to the deceased at the farm. Failure of the appellant to give a satisfactory explanation will of necessity fix him with the death of the deceased. I cannot disturb the findings and conclusion of the learned trial judge in this score.

It is equally trite law that evidence of a single witness that is direct, cogent and credible is enough to convict an accused person for offence of murder. It does not need to be corroborated. See Nnamdi Osuagwu v. The State (supra).

Also the non-tendering of the weapon with the crime was committed cannot invalidate the proceedings. The law does not require that such offensive weapons must be tendered. See Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561; Martins v. State (1997) 1 NWLR (Pt. 481) 355 and Alabi v. State (1993) 7 NWLR (Pt. 307) 511. On this note, this issue is resolved against the appellant.

RESOLUTION OF ISSUE 2
A number of the appellant’s counsel submissions on this issue are repetitive as I have dealt with them while resolving

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issue No. 1 I shall now turn to new submissions on this issue. Learned counsel submitted that the learned trial judge referred to and treated Exhibits A and B as confessional statements and relied on same in that capacity to convict the appellant. I have taken a careful perusal of the lower Courts judgment as contained at pages 34 to 46 of the record, and cannot see any where the learned trial judge either referred to or treated Exhibits A, A1 and B as confessional statements. Accused statement to the police must not be a confessional nature before it could be admitted in evidence.

The learned trial judge referred to Eexhibit A, A1 and B at page 45 of the record while evaluating the pieces of evidence led by the appellant and thereafter made findings. Doing so, in nowhere amounts to treating same as confessional statement.

Indeed, this Court had occasion to pronounce on the purpose of exhibit in the case of Buba v. State (1992) 1 NWLR (Pt. 215) 1 at 17, per Makhtar, JCA, thus:
“Exhibits are not tendered and admitted in Court for the fun of it, they are for a purpose albeit to assist in determining the relevance of the exhibits to the case.

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Secondly, once they form part of the record they must be examined, scrutinized and assessed for just determination of the case.”
See also, Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297 at 314 at 314-315 and R V. Ukpong (1961) 1 ALL NLR 25.

Therefore since Exhibits A, A1 and B were tendered and admitted as exhibits without any objection from the appellant, the learned trial judge was right to have evaluated same and made findings thereon. On the other hand, the fact that a statement made by the accused person is retracted at trial does not render such statement inadmissible. Indeed, even a retracted confessional statement is still admissible in evidence and may still be relied upon to convict the accused.
See Golden Dibie & Ors. v. The State (2007) 3 SCNJ 160 and Emmanuel Eke v. State (2011) 3 NWLR (Pt. 1235) 589 at 609.

In the same view, contradictions and inconsistencies to be able to negatively affect the veracity of evidence adduced, they must be materially significant to the extent of impacting adversely on the overall case of the prosecution. Indeed, contradictions must not be confused with misdescription discrepancy or a slip in

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the evidence of a witness. See Stephen John & Anor. v. The State (2011) 12 SCNJ, 718 and Rabi Ismail v. The State (2011) 7 SCNJ 102.

I have perused the findings of facts by the learned trial judge at page 41 of the record of appeal and I am unable to disagree with the learned trial judge that the contradiction highlighted in paragraph I therein are not fundamental enough to effect the evidence of the prosecution on this case adversely. They are not relevant to the central point in this case.

On the issue of where the appellant got the information he gave to the police at Ogaminana to the effect that he was told that a dead body was found in his farm and he was been suspected of killing the person. And that he further learnt that the person died when he was fighting with another person, I cannot find anything wrong with the learned trial judge finding that the appellant ought to have disclosed the source of that information. To my mind, the learned trial judge was weighing or evaluating that pieces of evidence to be able to make a finding. I also find nothing wrong with that. It cannot be said that no direct evidence was led by the

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prosecution linking the appellant to the death of the deceased because it is beyond doubt that unlike eye witness account, circumstantial evidence is usually an inference drawn from the overall circumstances of the case.

PW3 was emphatic that the appellant and the deceased live with her in the same camp, and that they both left for farm on that eventful afternoon. And that appellant returned home alone, packed his belongings and left for an unknown place and the deceased was not seen alive again. Exhibit D – autopsy report showed that the deceased died as a result of machete cuts on his head and hands. The appellant offered no explanation for the non-return from the farm of the deceased. The appellant merely denied going to the farm on the eventful day with the deceased. His evidence at trial was inconsistent with his statement to the police.

For instance, in his evidence in Court he said he was not at Owo on 4/8/2012, while in exhibit B he stated that he left the camp on 4/8/12, in his evidence in Court he said he did not know the deceased and that he only worked with deceased once, however on Exhibit A1, he admitted knowing the deceased very

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well and that he and the deceased worked for people at the camp. Indeed, the totality of the evidence accepted by the trial judge points irresistibly to the appellant and no other as the perpetrator of the dastardly act meted to the deceased on 4/8/2012 which led to the death of the latter. The conduct of the appellant after the deceased was last seen alive with him was more consistent with his guilt than his innocence.

The sum total of the circumstance evidence against the appellant raised a case much higher than mere suspicion. The circumstantial evidence in this case squarely fixes the appellant with the commission of the offence charged. Having ruminated this much, this issue is also resolved against the appellant.

RESOLUTION OF ISSUE 3
I have dealt with this issue of retraction of earlier statement by the accused person while resolving issue No. 2 above.

RESOLUTION OF ISSUE 4
It is trite law that a Court has a duty to consider and evaluate any defence open to the accused person, whether same was raised by his counsel or not, no matter how stupid or improbable such defence may appear. See Benson Ukwunneyi & Anor v. The State

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(1989) 4 NWLR (Pt. 114) 131 and Shalla v. State (2007) 18 NWLR (Pt. 1066) 240 at 263-264.

There is no doubt that the appellant raised the defence of “alibi” when he at page 20 of the record of appeal testified in chief, as follows:
“I know nothing about the death of Idowu Shaibu. I was at Okene when I heard that Idowu died. I had left the camp for sometime before Idowu died.”

By defence of “alibi”, the accused is saying that he was not at the scene of the crime and was therefore neither in a position to have committed the offence nor participated in its commission. A successful plea of alibi in a criminal case results in the acquittal of the accused person who relied on same. Given the exculpating nature of this plea and the fact that it is a matter peculiarly within the personal knowledge of the accused who raised same in defence, evidential burden that rests on the prosecution throughout the trial is sort of eased on the accused to discharge the burden of establishing the genuiness of the plea. In other words, the accused who raised the plea of alibi, must supply necessary information of his whereabouts at the material time sufficient

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enough to enable the police investigate same. See Ukwunneyi v. The State (Supra), Garba v. State (1999) 11 NWLR (Pt. 627) 422 at 439: Njovens v. The State (1973) SC 17 and Adisa v. State (1991) 1 NWLR (Pt. 168) 490 at 507.
However, it is trite law, that it is not enough for an accused person who wants to avail himself of the defence of alibi to just state that he was not present at the scene of the crime. He must go further to give sufficient particulars of his whereabouts timeously for the prosecution to investigate same since it is a matter of facts particularly within his knowledge. The particulars must be furnished to the police at the earliest opportunity, otherwise he would not be able to rely on same when raised for the first time during trial. Indeed an alibi raised for the first time in the witness box cannot be regarded as a serious defence as it will be regarded as an afterthought. See Ikemson v. The State (1989) 3 NWLR (Pt. 110) 445; Garba v. The State (supra).
In the case of Benson Ukwunneyi v. State (supra) at 144 paragraphs G H, the apex Court per Karibi-Whyte, JSC (as he then was) put the matter poignantly,

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thus:
“The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial. In this case the 2nd appellant’s defence of an alibi was made at the earliest opportunity and before he was charged with the offence. There was therefore a duty on the prosecution to verify from Chief Tagbo Kpela Ojoma, whether 2nd appellant was in the party he sent to convey the body of Onuora Chizor to Enugu-Ezike General Hospital. It was also possible for the prosecution to verify when the party returned to Ogurugu, and whether the 2nd appellant had the opportunity and could have committed the offence despite the fact that he was a member of the team.”

It is to be noted that in the instant case, the appellant was very inconsistent as to when he left the Oshowe camp. In Exhibit A at page 9 of the record, he stated that he left Oshowe camp to his home town on 1/8/2012 while in exhibit A1 at page 10, he stated that he left the same camp on 4/8/2012. Under cross-examination, he testified that he left Oshowe Camp in 1/8/2012. This inconsistency as to the actual time he claimed to have left the camp put a big question mark on his

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defence of alibi.

Beyond that, it is equally clear that in both Exhibits A, A1 and appellants oral evidence in Court where he raised the plea of alibi, all of them were bereft of any particulars that ordinarily would have enable the police to investigate the defence. It cannot be over-emphasized that the plea of alibi is a question of fact that must be established or discredited by credible evidence. But it is regrettable that the appellant failed to provide any particulars of the exact place(s) he was, the names of person(s) he was with and their exact addresses etc at the material time. In the case of Nnamdi Osuagwu v. The State (supra) at 52 paragraphs 25-30, the Supreme Court, per Rhodes-Vivour, JSC, opined:-
“After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of alibi. He must state in clear terms, the day, time, and address of where he was when the police alleged that he committed the offence.”

It is clear that the appellant’s plea of alibi is vague. In one breath, he said he left

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Oshowe camp on 1/8/2012 and in another he left the same camp on 4/8/2012. In fact, it would amount to a wild goose chase to expect the police to go to Okene, Kogi State to investigate a wild, clueless alibi.

In the circumstance, the appellant failed woefully to establish an alibi worthy of investigating and the police have no duty to disprove a worthless alibi. To this extent, this issue is resolved against the appellant.

Having resolved the four issues in this appeal against the appellant, this appeal fails for lacking in merit. Consequently, the judgment of Hon. Justice D. I. Kolawole of Ondo State High Court, sitting at Akure Judicial Division in charge No. AK/50C/2013, delivered on 19th day of May, 2014 is hereby affirmed.

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Other Citations: (2016)LCN/8743(CA)