Abubakar Tijani Shehu V. The State (2010)

LAWGLOBAL HUB Lead Judgment Report

I.F. OGBUAGU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division (hereinafter called “the court below”) delivered on 13th January, 2009 dismissing the Appellant’s appeal and affirming the judgment of the High Court of Kogi State sitting at Okene – per Olusiyi, J. delivered on 22nd May, 2007 convicting and sentencing the Appellant on a one count charge of mischief by fire punishable under Section 337 of the Penal Code to two (2) years imprisonment without an option of fine and a fine of N5,000.00 (five thousand naira) or to imprisonment for nine (9) months in default.

Dissatisfied with the Judgment, the Appellant has appealed to this Court on seven (7) Grounds of Appeal which without their particulars, read as follows:

“GROUNDS 1: (sic)

The Learned Justices of the Court of Appeal erred in law when they held that the prosecution proved the case against the Appellant beyond reasonable doubt, when in actual fact there was no evidence to show that the accused in fact committed the offence and thereby occasioned a miscarriage of justice.

GROUND 2:

The Learned Justices of the Court of Appeal erred in law when they held that there were compelling cogent and positive circumstances, which point to the guilt of the Appellant and no other without more and thereby occasioned a miscarriage of justice.

GROUND 3:

The Learned Justice of the Court of Appeal erred in law when they held that omitting the time of the day the offence was committed in the charge against the Appellant did not occasion a miscarriage of justice.

GROUND 4:

The learned Justice (sic) of the Court of Appeal erred in law in holding that the defence of alibi was not available to the Appellant and thereby occasioned a miscarriage of justice.

GROUND 5:

The learned Justice of the Court of Appeal misdirected themselves and drew wrong inferences which cumulatively occasioned a miscarriage of justice.

GROUND 6:

The learned Justice (sic) of the Court of Appeal erred in law in failing to resolve the many conflicts in the evidence of the prosecution witnesses in favour of the Appellant.

GROUND 7:

The judgment of the lower court is manifestly against the weight of evidence before the court”.

The facts of this case are that the Appellant was arraigned in the trial court on a one court charge which reads as follows:

“That you ABUBAKAR TIJANI SHEHU on or about the 26th day of November, 2002 of the Upper Area Court Ebogogo in Okene Local Government Area of Kogi State in the Kogi State Judicial Division committed mischief by fire, to with: you entered the Chambers of the President of the Upper Area Court Ebogogo and set it and the files therein on fire intending to cause destruction of the building and the case files and you thereby committed an offence punishable under Section 337 of the Penal Code.”

(the underlining mine).

The Appellant pleaded Not Guilty. Five (5) witnesses testified for the prosecutions while the Appellant and his wife, testified after his learned counsel’s No Case submission, was overruled. Both in his Statement to the Police after his arrest and in his evidence in court, he relied on the defence of alibi. I note that the learned trial court refused to admit his said Statement to the Police on 30th November, 2002 on the ground that the learned Prosecuting Counsel who tendered the Statement, did not comply with the Provisions of Section 199 of the Evidence Act, 1990. At the conclusion of the defence and addresses by the learned counsel for the parties, as noted earlier in this Judgment, the learned trial judge in his considered judgment, found the appellant guilty and convicted and sentenced him. His appeal to the court below, was dismissed hence the instant appeal.

The Appellant has formulated four (4) issues for determination namely,

“1. Was the Court of Appeal right in holding that there was compelling cogent and positive circumstantial evidence, which could only point to the guilt of the Appellant and none other

2. Was the Court of Appeal right in holding that the evidence adduced by the prosecution witnesses was not based on mere suspicion but established the guilt of the Appellant beyond reasonable doubt
3. Was the Court of Appeal right in holding that the defence of alibi raised by the Appellant could not avail the Appellant
4. Did the omission to state in the Charge Sheet the time of the day of the alleged offence of mischief by fire said to have been committed by the Appellant not occasion a miscarriage of justice”.

I note that it is stated that the above issues were/are raised from the six (6) grounds of appeal in the Notice of Appeal, which I note at page 128 of the Records, is not dated but stated in the Brief on 12th June, 2009.

On its part, the Respondent formulated three issues for determination.

They read as follows:

“(1) Whether the Court of Appeal was right to have come to the finding that from the overwhelming circumstantial evidence, the prosecution witnesses were able to prove the guilt of the Appellant beyond reasonable doubt.

(2) Whether the Court of Appeal was right in holding that the charge was good in law even though it did not state the actual time the offence of mischief by fire was committed.

(3) Whether the Court of Appeal considered and rightly rejected the defence of the alibi put up by the Appellant”.

I note that in the argument of the above issues, issue 1 is said to be distilled from Grounds 1, 2, 3, 5, 6 and 7 of the Grounds of Appeal while issue 2 is stated to cover Ground 3 and that that issue, is in respect to Grounds 3 and 4 of the Grounds of Appeal.

Since the Respondent has included Ground 7 of the Grounds of Appeal under issue 1, it needs be stated by me that it is now settled that in couching of an omnibus ground in criminal cases, the words used are “……… is unwarranted having regard to the evidence adduced” and not “having regard to the weight of evidence” as in civil cases. See the cases of Akibu v. Opaleye & anor. (1974) 1 SC. 189 and Adelesola & ors vs. Akinnide 7 ors. (2004) 5 SCNJ 235; (2004) 5 S.C. (Pt. II) 71 @ 76-77; (2004) 12 NWLR (Pt. 887) 295 @ 310-311. See also the cases of Aladesuru v. The Queen (1956) A.C. 49; 39 Cr. App. R. 184 P.C.; Enilari & 2 ors. V. The State (1986) 3 NWLR 604 S.C.

That in a criminal appeal, the point is not the preponderance of evidence on one side which outweighs the evidence on the other side.

But in the case of Mbam Iboko & ors. V. Police (1965) NMLR 384 S.C. – per incurram, it is stated that High Court Judges should see that it is a pardonable mistake and the words “weight’ should be deleted and counsel should be invited to argue the appeal with the right approach as laid down in the case of Queen v. Omisade & ors. (1964) NMLR 67 @ 78. In other words, although such ground may be incompetent, the court in an effort to do substantial justice, may allow an amendment in additional grounds or perhaps, ignore it and proceed on the merits of the appeal. I will therefore, regard and treat the couching of Grounds 7 of the grounds of appeal as a pardonable mistake on the part of the learned counsel for the Appellant.

I will take quickly issue 4 of the Appellant which is covered by Ground 3 of the Grounds of Appeal together with issue 2 of the Respondent, since it appears to me, that the learned counsel for both parties, have made too much fuss or weather in respect thereof in their respective Brief. I note that in the said charge, the time when the offence was allegedly committed, is not stated. This fact is conceded at page 28 of the Records by the learned counsel for the Respondent in his Address in the trial court. But he referred to the evidence of the PW5 who mentioned the time of the day the incident took place and submitted in the two lower courts that the Appellant was not misled nor did he suffer any failure of justice. The learned trial Judge at pages 37 and 38 of the Records in his judgment, relied on the evidence of the PW5 and on Section 382 of the Criminal Procedure Code. Said he inter alia:

“Although the charge did not state or specify the time of the day of the commission of the alleged offence by the accused person, the evidence of P.W.5 filled in that gap. P.W.5 told the Court that the time was 3.00a.m, on 26/1/2002, even if this was a defect in the charge, the evidence of P.W.5 had cured it and not failure of justice had been occasioned thereby”.

The court below at pages 97 to 102 of the Records, dealt with the same issue in issue 1 in that court. It also reproduced the provision of Section 202 of the Criminal Procedure Code and referred to the case of Garba & 2 ors. V. The State (1999) 11 NWLR (Pt. 627) 422 @ 440 C.A. and reproduced part of the concurring judgment of Salami, JCA (now President) and held firstly, agreeing with the submission of the learned counsel for the Respondent that the alleged omission did not occasion any miscarriage of justice to the Appellant and that not being a requirement of the law, is/was not injurious and could not be said to have vitiated the trial and conviction of the Appellant. Secondly, if held that as submitted by the learned counsel for the Respondent, since the Appellant did not object to the charge, that this amounted to a waiver since 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 – i.e. that 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. It refered to and relied on the cases of Adio v. The State (1986) 3 NWLR (Pt. 31) 714; Agbo v. The State (2006) 6 NWLR (Pt. 977) 545 and Bamaiyi v. The State (2006) 12 NWLR (Pt. 994) 221. It further held that 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. It finally, resolved the issue against the Appellant and in favour of the Respondent.

For purposes of emphasis, I will also reproduce herein, the provision of Section 202 of the Criminal Procedure Code (hereinafter called the “C.P.C.”). It states as follows:

“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”.

As rightly stated in the case of Garba & ors. V. The State (supra), the charge in the instant case, complies with the specimen of the charge contained in Appendix B of the CPC made in pursuance of Section 100 of the CPC Cap. 30 of the Laws of Northern Nigeria, 1963 applicable to Kogi State. The draft charge in the said Appendix, does not contain any provision for the hour of the day the crime was committed. I also hold that the time stated in Section 202 (supra), is with reference to the day the offence was committed and not to the hour of the day. The non-inclusion of the time in the charge, I hold and agree with the Respondent in their Brief, is a mere irregularity.

By virtue of Section 167 of the Criminal Procedure Act, an objection to a charge for any formal defect on the face of thereof, must be taken immediately after the charge has been read over to the Accused. See the case of Obakpolor v. The State (1991) 1 NWLR (Pt.165) 153 @ 124, 129, 135 cited and relied on by the Respondent. (It is also reported in (1991) 1 SCNJ 91).

In the case of Agbo v. The State (supra) @ 584 – 585 (it is also reported in (2006) 1 SCNJ, 332 @ 351; (2006) 1 S.C. (Pt. 11) 73 @ 96 – 97; (2006) 135, LRCN 808 @ 882 – 848; (2006) 2 SCM 1 @ 7-25; (2006) All FWLR (Pt.309) 1380 @ 1395 – 1412; (2006) 4 JNSC (Pt.13) 253 @ 262-282; (2006) Vol. 6 QCCR (Quarterly Criminal Cases Reports) 48 @ 65 – 82 and (2007) 10 WRN (Weekly Reports of Nigeria) 95 @ 110 – 132; I dealt with this issue as to the time or stage, an objection to a charge of any formal defect in the charge, should and ought to be taken and the consequence of failure to do so. See also the cases of Ndukwe v. LPDC. (The Legal Practitioners Disciplinary Committee) & anor. (2007) 5 NLWR (Pt. 1026) 1 @ 52, 53 cited and relied on in the Respondent’s Brief (it is also reported in (2007) 2 SCNJ 1 @ 34 – 43, (2007) 1 – 2 S.C. 253 @ 301 – 316; (1007) 146 LRCN 804 @ 833 – 841; (2007) All FWLR (Pt. 359) 1211 @ 1251 – 1261; (2007) 5 SCM 106 @ 142 – 152; (1007) 29 NSCQR 518 @ 568 – 581 and (1007) 2 KLR (Pt. 230) 1003 @ 1044 – 1055; and FRN v. Senator Adewunmi (2007) 10 NWLR (Pt. 1042) 399 @ 423 – 424 (it is also reported in (2007) 4 SCNJ 243).

I also agree with the Respondent in their Brief, that there is no miscarriage of justice for the alleged omission. My answer therefore, to the said Issue 4 of the Appellant is in the negative and in respect of the said Issue 2 of the respondent, is rendered in Positive/Affirmative.

I will now deal with Issue 3 of the parties. Alibi as is now firmly settled, means “some where else”. See the case of Ozaki & anor. V. The State (1990) 1 NWLR (Pt. 124) 92; (1990) 1 SCNJ 76 and Garba & ors. V. The State (supra). It is no longer in doubt that if an alibi is properly raised, it is the duty of the prosecution, to investigate it. It is however, the duty of the accused person relying on an alibi, to give details of the alibi he has set up; to enable the prosecution or the Police, to investigate it. His duty, involves letting the Police know at the earliest opportunity, where and with whom he was at the material time. See the cases of Akpan v. The State (1986) 3 NWLR (Pt. 27) 225; Obakpolor v. The State (supra); Akpan v. The State (1991) 5 SCNJ, 105 and Ogoda v. The State (1991) 3 SCNJ 61, just to mention but a few. The defence is complete, once an accused person discloses to the Police, his whereabout without more at the time of the commission of the crime. To demand for further particulars, would amount to shifting to the accused person, the burden of proving his innocence. See the cases of Ozaki & anor. v. The State (supra) Ozuluonye & 11 ors. v. The State (1981) 1 NCR 38 CA; Ibekwe v. Police (1980) IMSLR 538.

I have noted earlier in this judgment, that the Appellant, made a Statement to the Police and during his defence about his whereabout. This/it was rejected by the learned trial judge when it was tendered under Cross-examination by the prosecution. See pages 8 and 9 of the Records. What he stated in his evidence at the trial court at page 22 thereof and under cross-examination at page 24, are clear. Said he in-chief inter alia;

“On 26/11/2002 I was in my house throughout that day except when I went to see my lawyer between 12 noon and 12:30 p.m. to discuss my case in the Upper Area Court, Okene. I remained in my house thereafter throughout that day with my wife”.

(the underlining mine).

I note that his wife testified on his behalf as DW2. I note also that the Police who investigated the matter, if any never testified. In fact the alibi was never investigated by the Police. There is no evidence from the prosecution, that the Appellant was ever seen at the scene at the time of the crime. PW5 – the eye witness at page 17 of the Records, testified that at about 3.00am, “he discovered that the Chambers of the President of Upper Area Court, Ebogogo, was on fire” and that he shouted for help. That he ran to the people living nearby who came to assist him in putting out the fire. Said he on oath:

“There was no electricity light at the Upper Area Court; Ebogogo at that time… The window of the chambers of the president of the Upper Area Court; Ebogogo, had no louvers but it had burglary proof”.

I note that this witness, did not say that there was moon light at that time. He did not say he saw the Appellant.

With the greatest respect, I am not impressed or persuaded by the argument or distinction that the learned counsel for the prosecution drew at pages 18 and 19 of their Brief between the said statement the Appellant made at the opportunity at the time of his arrest by the Police and his evidence on oath at the trial. With respect, the latter, was not an after thought as falsely submitted by the Respondent’s learned counsel. Again, I hold that it was not a glib defence not worthy of positive consideration as it was/is not an attempt to smuggle in the defence for the first time in his evidence in court as stated by the court below at page 120 of the Records. As a matter of fact, by the said argument in paragraphs 7.2 to 7.5 of the Respondent’s brief, in my respectful but firm view, he was shifting the onus of proof on the Appellant to establish his innocence. I note that in the said paragraph 7.2 of the brief, he submitted inter alia; (and which is settled law in a number of decided authorities).

“My Lords, alibi is a defence available to an accused person (the Appellant in the instant case) who normally raises it early as a suspect or later as an accused person in Police investigation room. Where alibi is set up the primary onus of establishing the guilt of the Appellant is still on the prosecution but the evidential or secondary burden is on the Appellant to adduce some evidence of where he was at the material time”.

But yet, in spite of the above, he submitted that in the instant case, the Appellant was not able to discharge the burden placed on him. With respect, I do not agree with this submission. The Appellant did. His assertion of his whereabout on the date and time of the crime, I repeat, was NEVER investigated by the Police who was not called as a witness by the prosecution. I think I can rightly invoke Section 149(d) of the Evidence Act against the Respondent. He called his wife who confirmed his assertion. Their evidence was not controverted in cross-examination. As a matter of fact, the reliance by the tow lower courts on the evidence of PW5 who was also even arrested and arraigned in the Chief Magistrate’s Court in Lokoja and whose fate was of is yet to be determine, with respect, was the greatest injustice meted to the Appellant who was never fixed to the said crime by that witness. It is also a cardinal principle of law that no claim of alibi, should be disregarded by the prosecution without a check. See the case of Yanu v. The State (1966) NMLR 337, 357; Odidika v. The State (1977) 2 S.C. 21 and Nwosisi v. The State (1976) 6 S.C. 109. My answer to the said issue of the parties, is rendered in emphatic Negative. I find as fact and hold that the plea of alibi availed the Appellant.

This brings me to issue 2 of the Appellant. I have no hesitation whatsoever, in agreeing with all the submissions in paragraphs 5.5. to 5.12 of the Appellant’s Brief. There is evidence by the PW.4 – the Registrar of the said Upper Area Court under cross-examination, that some of the staff of that court including the PW5, were also arrested and that PW5 told her that he did not know how the fire incident stared. It was the P.W4 who told Police as admitted by her in cross-exanimation, that she suspected the Appellant and the confessed, that she did not see him set fire to the court buildings. What is more, there is even no evidence that the building was destroyed, burnt or damaged. What were burnt were files. So ingredient (iii) of the charge was not established by the prosecution. Regrettably and unfortunately, the two lower courts relied on the alleged boasts or threats of the Appellant to the said witness. I note that it was (not to set fire on the building of the court), but in respect of the PW1 – that very soon, he the Appellant would do something that will make the case to be started afresh. This witness under cross-examination, stated/admitted that he did not report the alleged threat by the accused person, to the Police and that he did not see him set the fire to the said court. In respect of PW2 – “the very good friend” of the Appellant, stated that the Appellant in the Upper Area Court, Ebegogo, was going to change and that he the witness, should watch out. PW3 – the President of the Court in his evidence in-chief, testified that he did not now the cause of the fire incident. Under cross-examination, he confirmed that majority of the staff of that court were arrested and detained by the Police. Why not If I or one may ask. As I noted earlier in this judgment, PW5 testified that although the windows of the Chambers had no louvers, it had burglary proof. So, there is the possibility that one or more of the staff, may or must have entered the said Chambers including the PW5, and set it on fire. These are possibilities and probabilities.

Indeed, the said words, of the elders referred to by the learned trial judge at page 38 of the Records, is a confirmation that the whole case against the Appellants, is based on suspicion or speculation. It said it all. Said His Lordships:

“The witch cried in the night and the child died in the morning, the killer of the child is no other person than the witch. To put it in another way, when the neighborhood witch manifests in the night and the child mysteriously dies in the morning, one doesn’t need any prescience to understand that there is a good case for murder”.

It didn’t say murder by who or it is perhaps, by the witch even though there are possibilities that the child may have died from many other causes of death. Perhaps, this saying in akin to that of my people that a man should not suffer diarrhoea on the very day that a goat is missing or stolen” (i.e., as a result of eating or drinking goat pepper soup, the diarrhoea may have been caused by or through other sources such as eating or drinking some contaminated food or water. All the above are based on suspicion or speculation. There could not have been compelling, cogent and positive circumstantial evidence, which could only point to the guilt of the Appellant and none other.

It is now firmly settled that it is an elementary proposition, that suspicion however, strong will not found or lead to a conviction. In other words, it cannot take the place of legal proof. See the case of Okafor v. Commissioner of Police (19655) NMLR 89 @ 90; Abieke & anor. v. The State (1975) 9 – 11 S.C. 97 @ 110; (1975) 1 All NLR (Pt.1) 567; Ikhame v. Police (1977) 6 S.C. 119 @ 122; Adamu & ors. v. The State (1986NWLR (Pt. 32) 865 @ 881; R v. Eqwunonye (Pt…) 15 WACA 1; R v. Wallace 23 CAR 52; Idowu v. The State (1998) 9 SCNJ 40; @ 56; (1998) 11 NWLR (Pt. 574) 354 @ 370; per Onu, JSC citing several other cases therein.

I agree with the submission in paragraphs 5.6 page 10 of the Appellant’s Brief of Argument and this is also now firmly settled in a line of decided authorities, that it is better for ten guilty persons to escape than one innocent person to or should suffer. In other words, it is better to acquit ten guilty men, than to convict innocent man. See the cases of Stephen Ukorah v. The State (1977) 4 S.C. 167 @ 177; Olakaibe v. The State (1990) 1 NWLR (Pt. 129) 632 @ 644; – per Kolawole, JCA (of blessed memory). In the case of Saidu v. The State (1982) 4 S.C. 41 @ 69 – 70, Obaseki, JSC stated inter alia, as follows:

“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law courts, they are entitled to walk about in the streets and tread the Nigerian soil and breathe the Nigerian air as free and innocent men and women”.

On his part, Sir Mathew Hale is quoted as once remarking that:

“it is better that 5 criminals escape Justice rather than one innocent person to be punished for an offence he did not commit”.

“So be it with the appellant. In the circumstances of the evidence before the Court which are borne out from the Records, I will give the benefit of my doubt, in favour of the Appellant and render my answer to issue 2 of the Appellant, in the Negative.

In respect of the last issue – i.e. issue 1 of the parties, without much ado, form all I have said in respect of issues 2 and 3 of the Appellant and issue 3 of the Respondent, my answer to this issue is definitely rendered in the Negative. The Appellant is entitled to the benefit of my doubt and I find as a fact and hold that the prosecution were unable to and did not prove its case beyond reasonable doubt. With respect, the hollow and inconsequential purported circumstantial evidence relied on by the trial court is supported or sustained by me or this Court having regard to what I have stated in respect of issues 2 and 3 of the Appellant and issue 3 of the Respondents’ brief.

I note that there are concurrent findings of facts by the two lower courts, but the attitude of this Court is that when the findings of facts, are either erroneous in substances or will lead to a miscarriage of justice as have been shown by me in this judgment among other things, this Court can interfere. See the cases of Dogo & 4 ors. v. The State (2001) 3 NWLR (Pt. 699) 192 @ 208; 210; (2001) 1 SCNJ 315 citing the cases of Nasamu v. The State (1979) 6 – 9 S.C. 153; Sobakin v. The State (1981) 5 S.C. 75 and Adio v. State (1986) 2 NWLR (Pt. 24) 581; Chief Akpan & 2 Ors. v. Chief Uma Otong & 3 ors. (1996) 12 SCNJ 213 @ 234 – per Ighu, JSC, citing several other cases therein and Nneji &3 ors. v. Chief Chukwu & 7 ors. (1996) 12 SCNJ 388 – per Ogwuegbu, JSC citing some other cases therein.

In conclusion, I have no hesitation in the finding as a fact and holding that there is merit in this appeal. It succeeds and it is accordingly allowed by me. I hereby set aside the judgment of the court below affirming the judgment of the trial court. The Appellant is found Not Guilty and he is accordingly, Acquitted and Discharged. As can be seen, the Appellant, since after May 2009 has served out the term of his imprisonment. If he did not pay the said fine, he has to be in prison may be, till the end of this month. It is a pity. It is unfortunate.

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SC.161/2009