Adewale Kabiru V. Attorney General, Ogun State (2008)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA. J.C.A.
This is an appeal against the judgment of Honourable Justice M.A. Dipeolu of the Ogun State High Court, sitting in Abeokuta on 18th June, 2004.
The appellant was arraigned before the trial court on a six count charge of Conspiracy and Armed Robbery contrary to and punishable under Section 1(2)(a) and Section 5(b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the federation of Nigeria 1990.
The appellant pleaded not guilty to the charges while the prosecution called six witnesses at the trial. At the close of the prosecution’s case, the appellant testified in his defence and called no witness.
The case of the prosecution is that on the 13th day of August, 1996 the appellant and others at large carried out an armed robbery operation at No.5, Temidire Ope-Oluwa Street, Ita Oshin in Ogun State during which several of the residents were robbed of their belongings. The appellant fled after the incident and was arrested hours later by policemen who took him back to the victims for identification. The victims alleged they identified the appellant as the one who collected their money.
The appellant on his part denied ever robbing anybody and said he was abducted at Iyana Abule-Otun Bus Stop at Lafenwa, Abeokuta and taken to the police station at about 8.45 am as he was about to board a taxi to Isale-Igbehin on 14/08/96. He put up a defence of mistaken identity.
After considering the case of the prosecution and the appellant’s defence, the learned trial judge found the appellant guilty as charged and sentenced him to death by hanging.
It is against this judgment that the appellant originally filed a Notice of Appeal dated 24th June 2004 with a sole ground, which was on 29/11/05 amended with a Notice of Appeal containing three grounds.
Two issues were formulated for determination. They are:
- Whether the denied confessional statement, Exhibit ‘A” simplicita if admissible is sufficient to ground conviction of an accused person?
- Whether the defence of Alibi (mistaken identity) avail the Appellant?
On 20/9/07 this court on application, granted the learned appellant’s counsel an order setting down the Appeal for hearing on the strength of the Appellant’s brief alone, the respondent having failed to file any brief.
Even though the respondent was served with the hearing Notice on 9/10/07, when this appeal came up for hearing on 16/1/08 the respondent was neither in court nor represented by counsel. The appeal was therefore argued on the appellant’s brief alone.
In his brief, the learned appellant’s counsel, Oladipo Okpeseyi Esq. submitted that no one could be lawfully convicted on the erroneous assumption that there is evidence against him either through alleged confession or admission or by proof and relied on the case of Ogunye v. State (1999) 5 NWLR (Pt 604.) 548 at 577D. He argued that there are three alleged confessional statements, one made to and recorded by PW5 at Lafenwa Police Station on 13/8/96, the second to PW6 dated 13/6/96 and the third on 14/8/96. He stated that the trial judge expunged both oral and documentary evidence of PW6 from the records, including the alleged statements by the appellant. Further that the evidence of PW1, PW2 and PW3 were discredited by the trial judge, that the only evidence left against the appellant is the evidence of PW5 and the alleged confessional statement, Exhibit ‘A’ recorded by PW5. He argued that the evidence of PW5 is not credible and should not be relied upon. Further that the evidence of PW5 showed gross incompetence as rightly found by the trial judge. The learned counsel highlighted aspects of the PW5’s evidence which the prosecution ought to provide answers for or explain for it to prove its case beyond reasonable doubt. He argued that the evidence of PW5 is not credible, should not be relied upon and should be discountenanced. The learned appellant’s counsel agreed with the trial court that an accused person cannot be convicted upon a statement that is not admissible in evidence against him unless it is shown by the prosecution to have been voluntarily made. Learned counsel cited and relied on the case of Kareem v. Federal Republic of Nigeria (No.2) (2002) 8 NWLR (Pt.770) 664 at 682-684 a-h.
Learned counsel argued that Exhibit ‘A’ which was denied by the appellant was not proved to have been voluntarily obtained.
In the alternative argument without conceding, learned counsel submitted that if the admission of Exhibit ‘A’ was proper it cannot ground conviction for an offence with death penalty, with the statement as the only evidence. He cited and relied on the case of Kareem v. Federal Republic of Nigeria (No.1) (2002) 8 NWLR (Pt 220) 664 at page 636-656 A-C. The learned counsel highlighted the conditions that would make a statement voluntary even though an accused has resiled from a confessional statement as laid down in R v. Sykes (1913). 18 CR.App. R. 233. He highlighted the contents of Exhibit ‘A’, and argued that the prosecution did not take any steps to prove, disprove and or confirm any of the material statements made in Exhibit ‘A’ that would link the Appellant to the crime. Further that the circumstances of the appellant’s arrest was not proved, for instance that nothing in Exhibit ‘A’ showed that the appellant was arrested with any other person who was later released, neither did Exhibit ‘A’ show that the appellant was arrested with a broken leg, taken to the scene of the crime, was identified by PW1, PW2, and PW3 or any other person. Further that Exhibit ‘A’ was not counter signed by a Superior Police Officer. He argued that the trial court should not have relied on Exhibit ‘A’ if the court had subjected Exhibit ‘A’ to the test enunciated in Kareem v. F.R.N. Nos. 1 and 2 (supra). That convicting the appellant on Exhibit ‘A’ alone occasioned a miscarriage of justice.
The learned appellant’s counsel submitted that the trial judge having admitted Exhibit ‘A’ as an Exhibit, even though the appellant had denied making Exhibit ‘A’, that the trial judge should have considered in detail the contents of Exhibit ‘A’, to determine whether it was made by the appellant, voluntarily being the only evidence upon which the appellant is to be sentenced to death, he said this occasioned a miscarriage of justice, and cited Daniels v. State (1991) 8 NWLR (Pt 35) 348 at 359.
Learned counsel argued that the trial court erred in not ordering a trial within trial to verify and or test the voluntariness of Exhibit ‘A’, therefore that the admission was wrong.
The learned counsel finally submitted that having admitted Exhibit ‘A’, except it passes the tests in R v. Sykes (supra) approved in Kanu v. R 14 WACA 30, Dawa v. State (1980) 8-12 SC 236 and Kareem v. F.R.N. (No.2) (2002) 8 NWLR 664, Exhibit ‘A’ cannot ground the conviction of the appellant. He argued that Exhibit ‘A’ failed these tests, he urged this court to so hold, set aside the judgment of the trial court and discharge and acquit the appellant.
There is no doubt that an armed robbery incident took place from the evidence of the prosecution witnesses. The question is: was there any evidence before the trial court that the appellant was one of the armed robbers? It is trite that in criminal cases, the burden is always on the prosecution to prove the charge beyond reasonable doubt. Okpular v. State (1990) 7 NWLR (Pt 164) 581; Oduneye v. State (2001) 2 NWLR (Pt 697) 311. I will examine closely the evidence of the prosecution witnesses.   Â
PW1 in his evidence testified that none of the robbers was arrested at the scene and that he did not identify the appellant until he was brought to the scene by the police, while the PW2 said that even though he did not see the appellant jump from the first floor, that when the appellant was taken to the scene the following day he was limping. The PW3 testified that it was the appellant who robbed him of N3,752:00 and also said that he made his statement after the appellant had been brought to the scene at about 7.00 am the following morning.
The learned trial judge in evaluating the evidence of the PW1 – PW3 had this to say:
”In the present case PW1, 2 and 3 stated that they recognized the accused person as one of the people that robbed them. That one of the robbers broke his leg when he jumped from the balcony of the first floor of the scene and when the accused was taken to the scene early in the morning by policemen he was limping. From this one can deduce the fact that limping was the feature with which the accused person was identified. PW3 went further in his testimony to state that when he wanted to take money from under the television set where he kept it, to give to the robbers, the accused person shone the light of a torch and he looked at the accused person, so he recognized the accused person, as the person who robbed him.
He did not tell the Court how he reacted when he saw the accused person in the morning. He did not know the accused person before the incident and the Identification of the accused person is not conclusive. What is more, none of PWs 1 – 3 mentioned that they could or did recognize the accused person in their statements. This goes to show that the identification was unsatisfactory and can not be relied upon. (underlining mine for emphasis).
It is true that the Supreme Court has held that spontaneous and positive identification of an accused immediately after the incident is better than a formal identification conducted by the Police. Anyawu’s case (supra), what is important in spontaneous identification is the reaction of the witness. In the instant case, it is my view that identification of the accused person was neither spontaneous nor positive…………, if on the other hand the accused was taken to the Police Station, and the witnesses on seeing him at the station immediately pointed at him as one of the robbers, then that will be spontaneous and positive identification as in Orimoloye’s case.”
From the above, it is clear that the learned trial judge discredited the evidence of the PW1 – 3 and adjudged their evidence on the identification of the appellant unsatisfactory, in holding that it was neither spontaneous nor positive the learned trial judge was right in so doing and in not utilizing the evidence of PW1 – 3. There was therefore high probability of error in the identification of the appellant as one of the armed robbers.
From the records, the PW6 did not make himself available for cross examination, his evidence during trial was therefore held to be useless, also his evidence during the trial within trial, as well as the statements of the appellant tendered through him, recorded on 13/8/96 and 14/8/96, Exhibits ‘A1’ and ‘A2’ respectively. The evidence of PW6 and the Exhibits tendered through him therefore have no probative value and were rightly expunged by the trial judge.
The only evidence left now is that of the PW5. PW5 was one George Maduka a Police Sergeant at the time attached to the Police Station at Lafenwa (D.C.B. Lafenwa). The case of armed robbery was referred to him for investigation concerning the appellant and two others, he carried out the initial investigations within the first 24 hours before the matter was transferred to the State C.I.D, Abeokuta, yet he did not know how the appellant was arrested and denied torturing the appellant when he obtained his statement, at the end of it all the learned trial judge was of the opinion that the investigation carried out by PW5 was not thorough. The PW5 did not give an explanation as to why he released Tokunbo Olaniran arrested with the appellant along with the sum of N249,000.00 found on him without much investigation to justify his story. Even though the PW5 testified that he visited the scene of the crime but he did not say whether he visited the scene with the two suspects or the appellant alone and did not indicate whether the two suspects or the appellant were identified by the residents.
Further, the PW1 – 3 did not corroborate the evidence of PW5 that he took the two suspects to the scene hours after the robbery, in their statements to the police it was not also stated. The PW1 – 3 did not state that any of them recognized the appellant in their statements to the police, neither did any of them state that one of the robbers was limping, a feature, now pegged on the appellant. This casts doubt over the evidence of PW5. Exhibit ‘A’ was admitted in evidence through the PW5. The appellant denied Exhibit ‘A’ which he said was not voluntarily made, and which the prosecution has not proved to have been voluntarily made.
In an alternative argument, the learned appellant’s counsel without conceding argued that if the admission of Exhibit ‘A’ was proper it cannot ground conviction for an offence with death penalty as the only evidence.
Once an accused person makes a statement under caution saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See Kareem v. F.R.N (supra); Gira v State (1996)6 NWLR (Pt 443) 375; Liya v. State (1998) 2 NWLR (Pt 538) 397.
A confessional statement, so long as it is free and voluntary, direct, positive and properly proved is enough to sustain a conviction. Akpan v. State (1990) 7 NWLR (Pt 160) 101; Obosi v. State (1965) NWLR 119: Egboghonome v. State (1993) 7 NWLR (Pt 306) 383; Bature v. State (1994) 1 NWLR (Pt 320) 267; Yesufu v. State (1976) 6 SC 167. Can it be said that Exhibit ‘A’ was free, voluntarily made, direct, positive and properly proved?
Where an accused resiles from his confessional statement, his conviction depends on the confessional statement being subjected to the test laid down in R v. Sykes (supra) applied in Kanu v. R (1952) 14 WACA 30.
But, in Corporal Jona Dawa v. The State (1980) 8-11 SC 236 at 267-268 it was said that not only must the confession pass all the tests satisfactorily but that the tests would be applied whether the statement was retracted or not. As it is, it is immaterial that the appellant retracted his statement, Exhibit ‘A’ See Bassey v. State (1993) 7 NWLR (Pt.306) 469 at 479. The tests are:
- Is there anything outside the confession to show that it is true?
- Is it corroborated?
- Are the relevant statements made in it of facts true as far as they can be tested?
- Was the prisoner one who had the opportunity of committing the offence?
S. Is his confession possible?
- Is it consistent with other facts which have been ascertained and have been proved?
See Ikpara v. Ali of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NWLR page  307; Akpan v. The State (1992) 6 NWLR (Pt 248) page 439.
Generally, the Courts are not disposed to act on a confession without first testing the truth thereof. It is desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight of the circumstances which make it probable that the confession is true. See Paul Onochie & Ors v. The Republic (1966) NWLR 307; Jafiya Kapa v. The State (1971) 1 All NLR 150; Yesufu v. State (supra); Obosi v. State (supra). If the confessional statement passes these tests satisfactorily, a conviction founded on it would be invariably upheld, but if the confessional statement fails to pass the above tests, no conviction can properly be founded on it, and if any is founded on it, it would be difficult to sustain on appeal.
In Ebhomien and Others v. The Queen (1963) 1 All NR 365, the appeal was allowed on the ground that the confessional statement on which the conviction was based was not voluntary, while in Obue v. The State (1976) 2 SC 141, the appeal was allowed because there was no proof of the veracity of the allegation contained in the statement.
In Exhibit ‘A’, jewellery that was said to have been robbed is said to have scattered on the ground as the robber ran away, no jewellery was recovered by the police from the scene as Exhibit, the earlier escapades mentioned in Exhibit ‘A’ were not investigated by the police.
The PW5 testified that he did not know how the appellant was arrested but while on investigation found out that he was arrested by a vigilante group and the police. The appellant was arrested the morning after the incident at about 8.45 am, no investigation was carried out to ascertain where he slept the night before or his where about all night. The appellant said he was arrested on his way to Isale-Igbehin the morning he was arrested, this was not investigated to establish whether the appellant had the opportunity of committing the crime.
The prosecution witnesses in their various statements to the police did not corroborate the contents of Exhibit ‘A’, It is the duty of the police to prove the confessional statement or to confirm the contents of Exhibit ‘A’, which would directly link the appellant to the crime.
It was not stated in Exhibit ‘A’ that the appellant was arrested with a broken leg for PW1, PW2 and PW3 to have identified him the next day at the scene of the crime. Exhibit ‘A’ did not contain the circumstances of the arrest of the appellant.
The learned appellant’s counsel had argued that Exhibit ‘A’ was not voluntarily made and that the trial judge should not have convicted the appellant based on Exhibit ‘A’. He had argued that if Exhibit ‘A’ is a confessional statement, in view of its retraction that the trial judge should have subjected it to the tests laid down in R v. Sykes (supra) before convicting the appellant on Exhibit ‘A’. The trial judge held thus:
“From the circumstances of this case, it is my view that the accused person volunteered Exhibit ‘A’, all PW5 did in respect of this case is obtain the statement of the accused person……….
The accused person’s evidence in my view is an afterthought. I accept Exhibit ‘A’, the statement he made immediately after the incident and his arrest as the truth.
The position of the law is that an accused person’s confessional statement without more is enough to convict an accused person. Having admitted the accused person’s statement at Lafenwa Police Station as an Exhibit and the truth and considering other circumstances surrounding this case, I hold that the prosecution has proved the charge of armed robbery vide counts II, III, IV, V and VI beyond reasonable doubt against the accused person. ”
From the above holding, the learned trial judge accepted Exhibit ‘A’ as the statement of the appellant. In R. v. Sykes (supra) relied upon in R v. Kanu (supra) the tests were laid down, that a man could be convicted on his own confession alone, but the rule is that the confession must pass all the tests laid down satisfactorily, the tests would be applied whether the statement was retracted or not. Bassey v. State (1993) 7 NWLR (Pt 306) 469; Corporal Jona Dawa v. The State (1980) 8 – 11 SC 236.
The prosecution needs to prove some facts and/or circumstances outside the confession which made it probable that the confession was true, then there would be a clear ground for conviction.
In the present case, 1. There is nothing outside the confession to show that it is true. 2. Exhibit ‘A’ was not corroborated 3. The relevant statements made in it are not facts which are true and could be tested by PW5’s evidence, the only evidence left, nothing recovered, arms, jewellery, money. 4. It was not proved that the accused had the opportunity of committing the offence. 5. The confession is not possible, it could not be confirmed, as his where about the night of the incident was not confirmed. 6. It is not consistent with other facts, which have been ascertained and proved, therefore no established facts through evidence that could be ascertained and proved has been led by the prosecution whose duty it is to prove the charge beyond reasonable doubt. An armed robbery incident was established, but it was not established that the appellant was one of the robbers.
The learned appellant’s counsel rightly argued that the onus is on the prosecution to prove the guilt of the appellant by virtue of S. 138 of the Evidence Act and S. 36(5) of the 1999 Constitution in respect of how the appellant was arrested, how many of them were arrested and the circumstances under which he was arrested which was not clarified in the evidence of the PW5.
The PW5 made it clear in his testimony that he did not know how the appellant was arrested. The appellant in course of trial denied making Exhibit ‘A’ voluntarily, the trial judge was duty bound to hold a trial within trial to determine its voluntariness. See Ojegele v The State (1988) 1 NWLR (Pt 71) 414 SC.
Where the admissibility of a confessional or any statement is challenged on the ground that it was not made voluntarily, it is incumbent on the trial court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within a trial. Adekanbi v. Ali Western Nigeria (1966) 1 All NLR 47. Ashake v. State (1968) 2 All NLR 198. Ogoala v. State (1991) Omokaro (1941) 7 WACA 146. Ogunye v. State (supra)
From the evidence on record the trial judge did not advert his mind to the six tests above in evaluating and utilizing Exhibit ‘A’ to convict the appellant. In Ogunye v. State (supra) it was held that no one can be lawfully convicted on the erroneous assumption that there is evidence against him through alleged confession or admission.
No doubt, a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the role played by an accused. Where it is challenged by the accused, it is the duty of the trial judge to look into the circumstances under which it was made before admitting it in evidence. The grounds for the objection must be investigated and ascertained before the admission as confession could be relied upon. Ogoala v. State (1991) 22 NSCC (PT 1) 366; (1991) 2 NWLR (PT.175) 509.
The truth of the confession must be tested. There is no evidence that this was done in the present case. Most especially when all that is being relied upon is the content of Exhibit ‘A’ and the evidence of PW5 which the trial judge adjudged unreliable, he carried out little or no investigation at all in an alleged offence that carries such a grave sentence if found guilty, a death sentence.
Most importantly, the issue of the identity of the appellant as one of the robbers was not settled, as none of the prosecution witnesses had seen the appellant before until the morning after the incident when he was brought to the scene of the incident. The limping feature was not tied to the appellant as it was not stated before he was taken to the scene the next morning that one of the robbers that night was limping.
“The learned appellant’s counsel argued that Exhibit ‘A’ was not confirmed before a senior police officer, this is not a legal requirement which if not complied with would render the confessional statement unreliable. See Edhigre v. The State (1996) 8 NWLR (Pt 464) 1 at 7 SC; Akpan v. State (1992) 6 NWLR (Pt 248) 439 at 472 SC. There is a heavy duty on the prosecution to prove any criminal charge beyond reasonable doubt for a conviction of an accused. More especially in capital offences such as this, that carries a heavy death sentence. The evidence leading to the conviction must be clear and without any doubt. Any doubt in the prosecution’s case must be resolved in favour of the appellant.
In conclusion, Exhibit ‘A’ the alleged confessional statement of the appellant was not proved by the prosecution to have been free and voluntary. Assuming Exhibit ‘A’ was properly admitted in evidence, as it was not direct and positive, the contents of Exhibit ‘A’ were not corroborated by the evidence of the prosecution witnesses, especially that of the PW5 which the learned trial Judge relied upon with Exhibit ‘A’ to convict the appellant, the learned trial Judge ought not to have attached such weight to Exhibit ‘A’ as to rely on same to convict the appellant, and I so hold.
The evidence adduced by the prosecution on the whole was unsatisfactory to confirm for sure the contents of Exhibit ‘A’ with the result that the guilt of the appellant was not proved beyond reasonable doubt to warrant the conviction of the appellant, Nwosu v, State (supra). The end result is that the prosecution failed to prove the contents of Exhibit ‘A’ and the guilt of the appellant.
In respect of issue two, the learned appellant’s counsel argued that no matter how worthless the defence set up by an accused person at the trial may be, the trial court has the duty to consider the defence dispassionately before dismissing same, learned counsel cited and relied on the cases of Ogunye v. State (1999) (supra), Abgyuluwa v. C.O.P, (1961) All NLR (Pt 4) 850 and Onuoha v. State (1988) 3 NWLR (Pt.83) 460.
He argued that the learned trial judge did not consider the defence of mistaken identity or alibi for the appellant. Further that having raised the defence of alibi, it is not his duty to establish the alibi but for the prosecution to disprove it. Learned counsel cited and relied on Nsofor v. state (2002) 10 NWLR (Pt 775) 274; Adekunle v. State (1989) 5 NWLR (Pt 123) 505; Onafowokan v. The State (1986) 2 NWLR (Pt 23) 496; Umani v. State (1988) 3 NWLR (Pt 85) 670.
The learned appellant’s counsel argued that the appellant had already denied that he voluntarily made Exhibit ‘A’ and that the only opportunity left for him was at the trial where his alibi was set up. Without conceding, he argued that even if it was too late, the prosecution did not investigate to ascertain with a view to dispelling the view that the appellant was absent at the scene and time of the crime and no opportunity to commit same.
Further that if the police had carried out a detailed investigation it would have known and established by credible evidence where the appellant resided, slept or was the night the crime was committed. The learned counsel contended that the police not having done so, this court should hold the defence of mistaken identity avails the appellant and to set aside his conviction and sentence and enter a verdict of discharge and acquitted in favour of the appellant.
Even though a defence put up by an accused, no matter how flimsy or worthless it may seem must be considered by the trial court as rightly argued by the learned appellant’s counsel. Where an accused person was not caught at the scene of a crime and raises the defence of alibi and the defence is not investigated, it will cast serious doubt on the evidence adduced by the prosecution, the prosecution is to disprove the defence of alibi. On the other hand a defence of alibi must be unequivocal and must be raised during investigation of the allegation against the accused person and not during trial. This will enable the prosecution investigate the truth of the alibi. Merely alleging that he was not at the scene of the crime by an accused is not enough. For it to succeed, he must give some explanation of where he was and the persons who knew of his presence at that other place at the time of the commission of the offence in question. In the present case the defence of alibi was raised by the appellant during the trial, there were no particulars in support as to exactly where he was, with whom and what he was doing at the material time. Merely saying he was elsewhere is not enough. The essence is to exclude the accused person’s presence at the scene when the offence was committed and that the accused could not have committed the offence. See Nsofor v. State (supra); Yanar v. State (1965) 1 All NLR 193. Salami v. State (supra). It is not the duty of the accused to establish by evidence the alibi but for the prosecution to disprove it, but the defence has to be properly raised. See Ozulonye v. The State (1981) 1 NCR 38.
In the present case, the defence of alibi or mistaken identity was raised at the trial. The prosecution would not have had time to investigate the alibi, more so where the particulars and/or details of the alibi was not given by the appellant. It is supposed to be a defence raised by an accused showing that he was not present at the scene when the crime was committed and could not be the person who committed the offence, especially where the accused as in this case was not caught at the scene of crime.
The appellant did not raise the defence of alibi at his arrest but at the trial. The prosecution was not therefore obliged to investigate the plea of alibi. In his evidence the appellant did not give evidence to support his defence of alibi or mistaken identity as to where he was and those who could testify to his presence in that other place rather than the scene of crime, making it impossible for him to have been present at the time and place of the robbery. In such a situation, the onus would then be on the prosecution to disprove it. As earlier stated, where properly raised it is the duty of the prosecution to disprove the alibi by calling evidence, it follows therefore that the alibi must be raised early to enable the prosecution to investigate it and call evidence, if necessary, in rebuttal.
An accused raising the defence of alibi must therefore do so at the earliest opportunity. See Sowemimo v. The State (2001) 36 NRN 52. R v. Lewis (1969) 2 Q.B 1, Adio v. The State (1986) 2 NSCC 815, Adedeji v. The State (1971) 1 All NLR 75. Gachi v. The State (1965) NMLR 33, Fatoyinbo v. AG Western Nigeria (1966) NWLR 4, Eze v. State (1976) 1 SC 125, Ozaki v. State (1991) 21 NSCC (Pt 1) 79, (1990) 1 NWLR (Pt.124) 92. On the other hand, where there is positive and credible evidence, accepted by the court, which evidence fixed the appellant at the scene of crime as one of the parties to the crime, the prosecution has no duty to call evidence in rebuttal of the defence of alibi or in conducting an identification parade to exclude the appellant. See Ede v. Federal Republic Of Nigeria (2001) 1 NWLR (pt 695) 502.
It is clear that the appellant did not give the police the opportunity to investigate the alibi, as a result he cannot rely on it. In this case, since the appellant raised the defence of alibi at the trial and said he was elsewhere at the time the offence was committed has made an assertion he has to prove, which in this case he failed to do. See Ibrahim v. State (1991) 22 NSCC (Pt.1) 587; ,(1991) 4 NWLR (Pt m186) 399. The defence of alibi or mistaken identity has not been properly raised by the appellant.
Having earlier held that the prosecution had not proved the offence of armed robbery beyond reasonable doubt against the appellant, the trial court not considering the defence of alibi or mistaken identity is immaterial and of no moment, as it does not in any way affect the case of the appellant adversely or in any way.
Having held that Exhibit ‘A’ was not proved to establish for certain the contents and the guilt of the appellant without any doubt, the effect is that I allow the appeal. In consequence I quash the conviction and sentence of death and substitute same with a verdict of not guilty.
I hereby discharge and acquit the appellant.
Other Citations: (2008)LCN/2714(CA)
