Clement Patrick V. The State (2009)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
In the High Court of Ogun State, Abeokuta Judicial Division, the Appellant was charged with conspiracy to commit armed robbery and two counts of armed robbery contrary to Sections (1) and 1(2)(a) 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. The two counts of armed robbery alleged that the Appellant and others at large on or about the 15th day of October, 2001 at Oyeyemi Cottage near Greenland Hostel, Onikolobo in the Abeokuta Judicial Division while armed with firearms, to with a gun, robbed Mrs. Mojisola Olutoyin Akiode of the sum of N8,000.00 and Mr. Olu Akiode of the sum of N7,500.00 and a household toaster valued N2,500.00. The charge dated 21st June, 2002 is at pages 2 and 3 of the records.
Out of the six witnesses listed for the prosecution, three (3) testified, that is Mr. Olu Akiode, Mrs. Mojisola Oluwatoyin Akiode and Sergeant Titus Ogbonna who testified as PW1, PW2 and PW3 respectively.
The Appellant called two witnesses, DW1 and DW2 and testified as DW3.
The PW1 and PW2 in their evidence testified that they identified the Appellant by his voice and dress, as one of the three robbers that came to their house the night of the incident.
DW1 and DW2 gave evidence in favour of the alibi set up by the Appellant that he was at his beat as a Security guard at the head office of Casagrande Nigeria Limited when the alleged robbery took place. DW2 was a Security guard who claimed to be on the same beat with the Appellant on the night of 14th/15th October, 2001, while DW1 is the Appellant’s employer.
At the end of the trial the learned judge Ayobode Lokulo-Sodipe, J. (as he then was) in a considered judgment on 11th May, 2004 convicted the Appellant on the three counts and sentenced him to death by hanging. The Appellant was dissatisfied with the learned trial judge’s conclusion upon evaluation of the facts before the court, originally filed a Notice of Appeal with a sole ground complaining that the judgment is against the weight of evidence, the Notice of Appeal was filed on 28th May, 2004 and by the order of court on application, amended the Notice
filed on 30th October, 2007, on 27th February, 2008, containing two grounds of Appeal. From the two grounds of Appeal in the amended Notice of Appeal, two issues were formulated for determination as follows:
“1. Considering the totality of the evidence before the learned trial Judge, can it be said that the prosecution proved the charges against the Appellant beyond reasonable doubt?
- Is the judgment of the learned trial Judge against the weight of evidence?”
When the appeal was argued, the learned counsel to the Appellant J. A. Badejo Esq., adopted and relied on his Brief of Argument filed on 30th October, 2007, regularised on 27th February, 2008 and reply brief dated and filed on 15th September, 2008.
In arguing the appeal, the learned counsel submitted that his first issue involves a consideration of the principles governing a court faced with conflicting evidence of prosecution witnesses as to the identity of the accused now appellant on one hand and alibi set up by the accused on the other. While the second issue over laps the first issue in every aspect, as a result, learned counsel argued the two issues together.
It was submitted that the learned trial judge considered the prosecution’s case and the defence of alibi separately and that no attempt was made to consider the totality of the evidence holistically by relating them to each other and then determine whether there are reasonable doubts in the circumstances of this case.
Further, that the learned trial judge did not consider at all, certain weaknesses in the prosecution’s case and ought to have weighed the evidence of the prosecution with the evidence of alibi adduced and consider the entire evidence together in other to arrive at a balanced decision or whether reasonable doubt had been created in favour of the Appellant.
It was submitted that the learned trial judge did not consider the sequence of events and the process of identification of the Appellant as given by PW1, Olu Akiode and PW2,(Mrs. Akiode) at pages 11 and 12 of the printed records and pages 14 to 16 respectively. It was submitted that the PW2 relayed a sequence different from PW1, for instance that the three men ordered PW2 to shut up when they entered their room and did not relay any conversation with the robbers before he was identified by one of them and tied. It was after he, PW1 was tied up that he reported a conversation he had with the short fair complexioned robber who was said to have had a rifle, the account given by the PW1 and PW2 differed. While PW1 stated that it was the accused/appellant that searched the wardrobe, the PW2 did not categorically say so, but stated that the men commenced their search and stole money and toaster, page 15 of the printed records. It was submitted that while PW2 claimed that after stealing the items, two of the robbers left the room while the third man with a gun remained at the door, page 15 of the records, the PW1 said it was after the two had withdrawn from the room that the toaster was stolen by the 3rd robber with a gun. Further that the PW1 stated that the Appellant and one other robber went into other rooms but did not say if they encountered the children there or removed anything and that one Remilekun Olayinka Akiode listed as witness NO.3 was never called as a witness.
Further that even though PW1 and PW2 admitted being familiar with the Appellant before the robbery, he farmed in PW1’s uncle’s adjoining land, they knew him and his voice. The appellant also lived near them but, both denied having any rift with the Appellant. It was further submitted that while the PW2 claimed under cross-examination that she had a lantern on in the room, the PW1 never confirmed this and PW2 never stated that she identified the Appellant by the rays of light of the lantern but both PW1 and PW2 claimed to have identified the Appellant from a passing ray of torchlight which fell on him momentarily.
They also claimed that the Appellant while in the dock was wearing the same top he wore on the night of the incident. From the evidence of DW2, the Appellant’s boss, the PW2 narrated to him that the Appellant came to her house to rob and to rape, on being asked if she saw the Appellant, she said it was dark but recognised the Appellant by his voice.
The learned counsel argued that there is a possibility of mistaken identity and preconceived malice which made PW1 and PW2 jump to the conclusion that it was the Appellant an Igede man, whose tribesmen landlords in the area had sought to drive away from the area was among the gang of three that came to their house that night. On the issue of mistaken identity, it was argued that the courts have stressed on need for caution when considering such evidence, learned counsel cited and relied on the following cases, CHRISTOPHER OKOSI & ANOR. v. THE STATE (1989) 1 NWLR (PART 100) PAGE 642, ZEKERI ABUDU v. THE STATE (1985) 1 NWLR (PART l) PAGE 55, and R. V. TURNBULL (1976) 3 WLR455.
It was argued that once there is doubt on the accuracy of PW1 and PW2’s assertion before the court such doubt should be resolved in favour of the Appellant.
The Appellant raised the defence of alibi, it was submitted that the learned trial judge failed to evaluate properly the alibi raised by the Appellant. It was contended that the learned trial judge misapplied the decision in MICHAEL HAUSAv. STATE (1994) 6 NWLR PART 350 PAGE 281, relied upon by the trial court. The learned counsel distinguished the above case in that, in that case the prosecution had established the identity of the Accused and had proved the crime beyond doubt, which made the failure to investigate the defence of alibi of no consequence. The learned counsel cited and relied on the following cases as more relevant to the case at hand, AKPAN IKONO & ANR. v. THE STATE (1973) 5 SC 231 (NOW 167) in the reprint, WASARI UMANI v. THE STATE (1988) 1 NWLR (PART 70) PAGE 274 and BENSON UKUWUENNENYI & ANR. v. THE STATE (1989) 4 NWLR (PART 114) PAGE 131.
The learned counsel reviewed the evidence of the Appellant who testified that he was on duty in the night of the robbery incident, and that his boss DW1 had the key to the premises and that there was no opportunity or way for him to get out of the premises that night. The evidence of the DW1 at page 18 – 19 of the records was reviewed. It was stated by the DW1 that on the night of 14th October, 2001 he locked the gate in the evening, the Appellant was in the premises and he the DW1 opened the gate the next morning. Further, that the PW3(the Policeman)testified that the Appellant’s co-workers confirmed that he was at his beat throughout the period of his duty on 15th October, 2001, page 17 of the records. Similarly, DW2 George Ziwani, a co-security guard with the Appellant testified and confirmed that the Appellant was on duty with him from 6.00pm on 14th October, 2001 till 6.00am on 15th October, 2001 and as always at 9.00pm the DW1 came and locked the gate of the compound and left with the key and testified that the Appellant never left the premises, page 22 of the records.
It was submitted that the DW3, the Appellant gave clear evidence that he was on duty at DW1’s premises and closed at 6.00am on 15th October, 2001, and tendered the duty Register, Exhibit ‘E’ and stated that the DW1 always locked and opened the gate; pages 23-27 of the record, but the learned trial judge disbelieved the evidence of DW3 (The Appellant) because under cross-examination on the importance of Exhibit ‘E’ (the Register) the DW3 stated that at night the register was always handed over to the DW1 with the key of the padlock of the gate which it was argued the learned trial judge implied and believed someone else locks the door and hands over the key to the DW1, which contradicted DW1 and DW3’s evidence that DW1 actually locked the gate on 14th October, 2001 and opened it on the morning of 15th October, 2001. It was argued that the DW3’s statement was not enough to disbelieve the DW1’s affirmative assertion that he personally locked the gate on the date in question, learned counsel submitted that it is speculative and unwarranted.
The learned counsel stressed that there was no evidence that the police investigated whether the gate was left unlocked on the night of the incident to facilitate the exit from the compound of any of the guards on duty on 14th October, 2001 to 6.00am of 15th October, 2001.
The learned counsel to the Appellant submitted that the trial judge’s speculation that any of the guards could have left DW1’s residence with his rifle if DW2’s statement to the police, Exhibit ‘D’ is correct, but the learned judge had disbelieved and rejected the statement and evidence of the DW2. Further, the evidence of the PW3 was highlighted to the effect that the cartridge recovered at the scene was not investigated to see if it matched the ammunition of DW1’s rifle, which would have demolished the Appellant’s alibi. We were urged to apply Section 149(d) of the Evidence Act against the prosecution.
Further in his submission, the learned counsel made reference to the evidence of the PW1 (page 12 of the record) where he stated that immediately after the robbery incident, he and other landlords in the area went to the Appellant’s house and found that three of the tenants were not in at that time, 4.30am, one of the missing tenants was said to be the Appellant yet the police did not investigate who the other two tenants were, were they questioned, were they of Igede tribe, the evidence of PW3 and the statement of the Investigating Police Officer did not mention this aspect of the happenings. It was argued that failure to call any of the children of PW1and PW2and the third security man at DW3’s place of work is fatal to the case of the prosecution as they were vital witnesses. Section 149(d) of the Evidence Act was relied upon and the case of OGWA NWEKE ONAH V. THE STATE (1985) 3 NWLR PART 12 PAGE 236.
It was submitted that the benefit of doubt in this case tilts more in favour of the Appellant, considering the facts and circumstances of this case as relates to his alibi.
Further that Section 138 of the Evidence Act is strict and never shifts, the prosecution must establish the guilt of the Appellant beyond reasonable doubt. Learned counsel cited and relied on a decision of this Court and Division in SAMODI MUSTAPHA v. THE STATE, (2007) 12 NWLR (PART 1049) PAGE 637 AT PAGE 658 paragraphs F-H, per Muhammad, J.C.A. and BELLO v. THE STATE (2007) 10 NWLR (PART 104) PAGE 564.
We were urged to resolve issues one and two in favour of the Appellant.
In response, the learned counsel to the Respondent, A. A. Oyefeso Esq., filed his brief of argument on 30th June, 2008 regularised on 15th September, 2008. When the appeal was argued learned counsel adopted and relied on same. The Respondent adopted issue one (1) formulated by the Appellant in his Brief of Argument but couched it differently thus:
“Whether from the totality of evidence adduced at the trial, the prosecution has proved the charge against the Appellant beyond reasonable doubt in accordance with Section 138 of the Evidence Act (Cap E.14) Laws of the Federal of Nigeria, 2004.”
In arguing his sole issue, the learned counsel to the respondent submitted that two of the ingredients of the offence of armed robbery were established and rightly found by the trial judge, that is, that there was a robbery, that the robbery was armed robbery and this was through the Respondent’s witnesses PW1 and PW2, who also testified that the Appellant was one of the three men that robbed them.
Contrary to the argument of the learned counsel to the Appellant it was submitted that there was no mistake in the identification evidence led by PW1 and PW2. It was submitted that PW1 and PW2 recognised the appellant at different times but under the same circumstances, and that the place was in darkness, had a lit lantern in the room while the ray of torchlight supplied a better illumination which enhanced the recognition of the Appellant and the description by the PW1 and PW2 of the man who held the gun as fair in complexion and short. It was argued that the rays of torch light as led in evidence by PW1 and PW2, supplied a better illumination which enhanced the recognition of the appellant. It was stressed that the PW2 identified the Appellant by voice, which principles of law permit and relied on the case of ARCHIBONG v. THE STATE (2006) 5 SCNJ 202 AT 215. It was argued that the PW2’s evidence on voice identification was not challenged since PW2 was not cross-examined on this, also OFORLETTE v. STATE (2000) FWLR (PART 12) PAGE 2081. It was argued that the court is bound to accept the unchallenged evidence. Further that the learned trial judge by his holding at page 43 of the record believed the voice identification which he held demolished the alibi of the Appellant, which the court held was never established. The learned Respondent’s counsel argued that the third ingredient of the offence of armed robbery was established against the Appellant, that is, that the Appellant was the armed robber or one of the armed robbers, and that the learned trial judge rightly convicted the Appellant. We were urged not to upturn the conviction of the Appellant.
Further, that even though DW1 stated that it was not possible for the Appellant to have robbed PW1 and PW2 that night (page 25 of the record), it was submitted that there is no evidence that the Appellant himself denied the accusation of PW2, reliance was placed on the case of ABOGEDE V. THE STATE (1996) 4 SCNJ 223, learned counsel submitted it was evidence of admission by conduct not having denied the accusation. Learned counsel said, the appellant did not deny or protest against the PW2’s accusation barely four (4) hours after the offence was allegedly committed.
It was argued further that the learned Appellant’s counsel argued extensively on the contradictions in the evidence of PW1 and PW2, it was submitted that these contradictions complained of are on the sequence of PW1’s and PW2’s evidence and that it is a well known principle of law that human faculty may miss some minor details mostly, due to lapse of time and even error in narration in order of sequence. It was argued that for contradictions to be fatal to the prosecution’s case it must go to the substance of the case and not of a minor nature, reliance was placed on ARCHIBONG v. THE STATE (supra). Further, that there was no contradiction or mix up in the evidence of the Prosecution witnesses, to be fatal to the case, the conflict or mix up must be substantial and fundamental to the issues in question before the court, see NAMSOH v. THE STATE (1993) 6 SCNJ 162 AT 168.
In respect of not calling one Remilekun Olayinka Akiode, it was argued that the prosecution is not bound to call a particular number of witnesses or a particular witness, See STATE v. OLATUNJI (2003) 2-3 S.C.85, it was submitted that the Remilekun was not an eye witness to the robbery offence complained of, she was not a material witness in this case and the prosecution was not obliged to call her, that failure to call her was not fatal to the prosecution’s case.
We were urged to hold that the prosecution had proved its case beyond doubt against the Appellant as required by law vide Section 138 of the Evidence Act and to resolve issue one in the Appellant’s brief and the sole issue formulated by the Respondent in the Respondent’s favour.
Even though the Respondent formulated only one issue in line with the Appellant’s first issue, the learned Respondent’s counsel with reference to the Appellant’s issue two, submitted that it is incompetent, based on ground two of the amended Notice of Appeal which learned counsel submitted is incompetent and that the said ground 2 should be struck out, reference was made to the case of ADELUSOLA v. AKINDE (2004) 12 NWLR (PART 887) PAGE 295 AT 310.
Finally, that once issue one in the Appellant’s brief is resolved against the Appellant, the entire appeal would be disposed of. On this same second issue of the Appellant’s, submitted that the learned trial judge properly and adequately evaluated the evidence before him before arriving at its decision, the case of IGAGO v. THE STATE (1999) 4 NWLR (PART 537) 1, was cited and relied upon.
We were urged to dismiss the appeal, and hold that the prosecution proved its case beyond reasonable doubt as required by law, and that the trial judge rightly found the identification of the Appellant as one of the robbers to have been established and rightly convicted the Appellant and finally that Appellant’s ground 2 and issue 2 are incompetent and should be struck out.
In his reply brief of argument, the learned counsel to the Appellant argued that the Respondent will not suffer any miscarriage of Justice and has not been prejudiced as a result of the Appellant not using a “more appropriate phraseology” in ground 2 of his Notice of Appeal.
Learned counsel submitted that this is a Criminal Appeal which involves a death sentence already passed on the Appellant and would be dangerous to cling unto technicality in deciding the fate of such Appellant. It was submitted that the Supreme Court noted the use of inappropriate phraseology for the omnibus clause in the Appeal but did not declare such ground incompetent, the criminal Appeal was determined on the merits despite the case of an “inappropriate phraseology”. See OTEKI v. A-G. BENDEL STATE (1985) 2 NWLR PART 24.
We were urged to reject the Respondent’s submission to penalize the Appellant for not using a more appropriate phraseology in ground 2 of the grounds of Appeal but instead consider the substance of the ground which deals with evaluation of the totality of the evidence before the trial court. Further that the Respondent has conceded that Ground 1 of the Grounds of Appeal is valid and sufficient to determine the Appeal.
Contrary to the submissions of the learned counsel to the Respondent, the learned Appellant’s counsel submitted that the PW2 was cross examined on the issue of identification of the Appellant by his voice when the PW2 admitted knowing the Appellant very well before 15th October, 2001, see page 15a of the record. It was argued that the main issue before the trial court is the alibi of the appellant which located him somewhere else on the night of the robbery. It was argued that it was wrong to have singled out the voice identification as alleged by PW2 and believe same without considering the totality of evidence adduced, see WASANI UMANI v. THE STATE (1988) 1 NWLR (PART 70) PAGE 274.
It was argued that by Exhibit ‘F’, the Appellant denied the allegation that he participated in the robbery, therefore that it cannot be justified that the Appellant failed to deny the accusation timeously, the case of BELLO v. STATE (2007) 10 NWLR (PART 1043) PAGE 564 was relied upon.
We were once again urged to discountenance the respondent’s Submission and allow the Appeal.
I will resolve the two issues as raised by the Appellant together.
As rightly held by the learned trial judge at page 45 of the records that the burden is on the prosecution to prove the charge beyond reasonable doubt, the burden never shifts. See the recent decision of this Court and Division of which I was privileged to have been part of in KABIRU v. A-G OGUN STATE (2009) 5 NWLR (PART 1134) PAGE 209, also see OKPULOR v. THE STATE (1990) 7 NWLR (PART 164) 581 and ODUNYE v. STATE(2001) 2 NWLR (Pt.697) 311.
In the brief of argument of the learned counsel to the Respondent, learned counsel contended that the three tests to establish a charge of conspiracy to commit armed robbery and armed robbery had been established by the prosecution who had proved same beyond reasonable doubt against the accused/Appellant.
The tests were:
(i) That there was a robbery.
(ii) That the robbery was armed robbery.
(iii) That the accused person was the armed robber or one of the armed robbers.
From the evidence of the prosecution witnesses there was a robbery, the robbery was armed robbery but, the defence put up a serious defence of alibi, that is, that the appellant was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. The learned counsel to the Appellant argued that the learned trial judge considered the prosecution’s case and defence of alibi in separate compartments. It is the law that where a defence has been put up, it must be considered along with the totality of the evidence holistically by relating them to each other to pin point whether there are reasonable doubts in the circumstances of the particular case, and this should have been the case here. It must be considered, no matter how improbable or regarded as stupid, see OPEYEMI v. STATE (1985) 2 NWLR (Pt.5) 101.
The PW1 and PW2 in their evidence insisted that they identified the appellant by his voice. They gave account of the role the Appellant played during the incident, even though the sequence of event was different as relayed by PW1and PW2. PW1and PW2 admitted that they were familiar with the appellant before the incident of robbery, he farmed in their uncle’s adjoining land to where they lived and they knew his voice. While both denied having any rift with the Appellant the PW3 the Police Officer confirmed under cross-examination (page 17 of the records) that the Appellant and the victims were neighbours and he had been told that the victims had a dispute with the Appellant, which the victims confirmed to him.
The PW1 and PW2 denied the existence of any dispute between them and the Appellant, the question that arises is: why would they hide this fact? As posed by the learned counsel to the Appellant, could their testimonies fixing the Appellant at the scene of the robbery be borne out of malice? At page 15a of the records the PW2 under cross-examination still confirmed that he knew the Appellant very well before the incident of 15th October, 2001 but, denied having any quarrel with him while the Appellant as DW3 alleged that the Igede’s (his tribesmen) had been suspected as thieves by the landlords of the area including PW1 who had asked them to leave, and that he had a dispute with the PW2 before the incident, page 27 of the records. Exhibits ‘C’ and ‘F’ statements of the Appellant show clearly that the PW1 and PW2 knew the Appellant well before the robbery and there had been existing animosity between them which he gave details of in Exhibit ‘C’. Pages 5 – 7 of the record. Exhibits ‘C’ and ‘F’ were made shortly after the incident. It is in the evidence of PW1, PW2, PW3 and DW3 that the victims knew the appellant before the incident. Is it possible that the appellant whom the victims knew before the incident would be the one to demand the money from the victims in a room alleged to have been lit up by a lantern and DW3’s face shown by a ray of torch light from one of the other robbers?, it is doubtful. More so, the DW3 asking the PW1 “Where is the money’ knowing fully well that the PW1 knew him well, being neighbours too, it is also doubtful that the DW3 would be the one to search the wardrobe, a person who could easily be identified, and in the encounter conversed with the victim, in addition to moving freely in the room where the PWn1 and PW2 were, searched the wardrobes and wearing clothes that he would later be arraigned in court, in clothes that he would have been seen in, in the past in the neighbourhood, wore same the night of the robbery and made no attempt to dispose of it, at least after the alleged robbery, Even the most dumb and green “apprentice” or first timer armed robber would not do that but, would attempt to cover his tracks, This bit of evidence of recognition of the appellant by voice and the top worn the night of the incident, believed by the learned trial judge are doubtful. As rightly argued by the learned counsel to the Appellant, why did the prosecution not tender the statement of PW2 to the police, the second victim who would have had a fresh memory and account of the incident she said she witnessed? No explanation was given.
Apart from the PW1 and PW2 no other person testified to confirm that the appellant wore the same clothes in the morning of 15th October, 2001 as the one he wore in the dock. The victims and the appellant were not on good terms, there is a possibility that he could have been mistaken for another or because of the existing animosity between the victims and the appellant, there could have been preconceived malice to get rid of the appellant from the area, being an Igede tribesman. In a state of panic, of an armed robbery attack it would be easy to mix up faces and voices. The PW1 and PW2 created doubt as to their relationship and feelings towards the appellant when they tried to hide the fact that they knew the appellant and had problems with him in the past, this was an opportunity to punish the appellant for the previous disagreement. There is doubt as to whether the top the appellant wore in the dock was the same worn by one of the robbers the night of the incident, and that the robber who searched the room and demanded the money was the appellant, someone well known to the victims. See CHRISTOPHER OKOSI & ANOR. V. STATE (supra) and R. V. TURNBUL (supra).
It is trite that once there is a reasonable doubt about the guilt of the accused the prosecution would have failed to discharge the onus of proof vested on it by law and the accused would be entitled to an acquittal but, where there is a pointer, not rebutted by evidence on the accused then the guilt of the accused cannot be shaken.
The requirement of proof beyond reasonable doubt is a policy of our law which carries a heavy burden. It is not based on what we as human beings perceive Justice to be, because of our human limitations.
We on our own cannot know or determine the actions of others unaided by evidence and inferences, more especially where the offence charged is of a grave nature and where the punishment is the highest in our land, death sentence. Therefore the evidence leading to conviction of an accused must be clear, without any doubt, any doubt in the prosecution’s case must be resolved in favour of the accused/appellant.
See KABIRU v. A.G. OGUN STATE (SUPRA) and UKWUNNENYI v. THE STATE (1989) 7 S.C. (PT.1) 64.
In the present case the appellant from the onset raised the defence of alibi, which learned counsel to the appellant submitted, the learned trial judge did not evaluate properly. The defence of alibi is a claim of absence from the scene of the crime and was therefore neither in a position to have committed the offence nor participated in its commission. I have stated earlier in this judgment that the onus is on the prosecution to prove the guilt of the accused, however since the defence of alibi is peculiar within the knowledge of the accused person raising it, the burden of leading evidence of the fact surrounding the alibi raised is on the accused now appellant. See GACHI V. STATE (196S) NWLR 333, ODIDIKA V. STATE (1977) 2 S.C. 21.
The appellant is not to prove his innocence, he is presumed innocent until proved guilty. The appellant in this case pleaded alibi early enough, at the earliest opportunity before he was charged with the offence of armed robbery. There was therefore a duty on the prosecution to verify from those at the place where the appellant said he was, in this case at his place of work, where he was a permanent night security man for the DW1, and worked from 6.00pm to 6.00am the next day. He worked with two other night security men. In part of his statement in Exhibit ‘F’ (made on 15/10/2001) he stated thus:
“I work as a permanent night security guard.
I do resume duty by 6.00pm and close by 6.00am the following day………..
Yesterday being 14/10/2001, I left my house by 5.30pm to my working place.
I was at my working place till 6.15am 15/10/2001. At my working place, I am their leader of the night security men of the night security men, (sic) namely Jubril Haruna and George Z. I don’t know where they live, and we all close together this morning. I never leave my working place since 5.30pm of 14/10/01 to 6.15am of 15/10/2001.
Immediately it is 11.30pm the white man am working with use to lock the gate and go away with the gate key, he will not return it until 5.am in the morning. By this, there is no how I could come out of the compound, to go and rob.”
The DW3 in Exhibit ‘F’ (his first statement at Adigbe Police Station) gave the particulars of his alibi, as a leader of the night security men at his work place, that he was there at 5.30pm on 14/10/01 till 6.15am on 15/10/01, he mentioned his two co-workers by name, DW2, was one of them, he named his employer, DW1 Similarly, in part of his statement Exhibit ‘C’ (made on 17/10/2001) the appellant stated thus;
“I do night duty permanently at Casagrround Nig. Ltd. Abeokuta.
I have been in Ogun State for the past six year now. ……….
On 14/10/2001 at about 5.30pm, I left my house to my working place at Casaground Nig. Ltd. For night duty and I was there with two other security guards who are Jubrila Haruna and one George Z. and we close at about 6.15am the following day that is 15/10/2001. I did not go anywhere until morning duty men took over from us. I did not rob anybody. I reached my house around 6.30am and 6.45am of 15/10/2001………………………………….. ”
In his statement Exhibit ‘C’ at the State cm, Abeokuta, he was consistent as to where he was. His employer DW1 gave evidence in support as well as DW2. The contents of Exhibits ‘C’, and ‘F’, the evidence of DW1, DW2 and DW3, were consistent fixing the appellant at his place of work, the night of the robbery. The prosecution did not investigate and rebut the appellant’s evidence that he was at his duty post throughout that night of the robbery incident and that DW1 his boss, had the key to the premises as he used to lock the gate and go away with the key till morning and that he had no opportunity or way to get out of the premises that night. The DW1 at page 18 of the records confirmed the appellant was on duty that night and stated that the fence of the premises is about 4.5 metres and had barbed wire on top and that the DW1 could not have scaled it to get out, and was firm that the Appellant could not have gone out. The DW1 testified that he used to lock the gate personally at 9.00pm and open at 6.00am and even added that the appellant was a serious and honest staff. The evidence of the DW1 tallied with the appellant’s statement made shortly after the incident, his evidence is that he locked the gate in the night of 14/10/01 while the appellant was in the premises and he opened the gate the next morning.
The police officer PW3 at page 17 of the record stated that “The co-workers of the Accused did say that he was at his beat throughout the period of his duty on 15th October, 2001.”
Surprisingly, the third coworker that was named by the appellant in Exhibits ‘C’ and ‘F’ was not questioned. DW2’s evidence corroborated that of DW1 and DW3 that the appellant was at work that night and that the DW1 locked the gate and went away with the key, and that the appellant could not have left the premises. The learned trial judge rejected the evidence of the DW2 for the mere reason that in his earlier statement to the police he stated that he locked the gate, after stating that they carried firearms, denied same in his evidence in court. The slight contradiction by the DW2 was not enough to destroy the defence of alibi, with the evidence of PW3, DW1 and the appellant (DW3) unshaken. The duty roaster, Exhibit ‘E’ was tendered and the learned trial judge disbelieved the entire testimony of the DW3 because he stated that Exhibit ‘E’ and the key to the gate are always handed over to DW1 based on which, with respect the learned trial judge believed and implied that someone else locks the gate. In my humble view, this is not enough to counter DW1’s affirmative assertion that on the night of 14/10/01 he personally locked the gate. The important thing is that on the night of the incident the DW3 was on night duty at the DW1’s premises and the gate was locked all through the night, it has been shown that the gate was locked that night and the DW3 had no opportunity to leave the premises and the prosecution have not established the contrary. The particulars of the alibi were given early enough; the prosecution should have investigated it and called evidence, if necessary, in rebuttal.
The appellant gave details of where he was and named those who were with him elsewhere that night when the offence was committed.
The learned trial judge should have considered the defence of alibi alongside the evidence adduced by the prosecution in support of the charge against the appellant. Where in the evidence before the court, the evidence in support of the alibi is stronger than that of the prosecution, the accused must be acquitted. See YANOR V. STATE (1965) NMLR 337. In the present case, the evidence of the prosecution has not neutralised and nullified by stronger, more cogent and more convincing evidence of the participation of the accused in the alleged armed robbery offence. Once there is doubt as to the appellant’s presence as in this case, at the time and place of the armed robbery offence, it is enough to secure him an acquittal. See ADEDEJI V. STATE (1971) ALL NLR 75.
The Appellant from the onset and in court discharged the evidential burden, he is entitled to the benefit of doubt created in the case put forward by the prosecution against him, where it could not be said for sure that the Appellant was one of the robbers on the night of 14/10/01 when the victims were robbed. The trial judge was wrong to have rejected his defence of alibi. In the Hausa’s case (supra) relied upon by the learned trial judge, the identity of the accused had been established and the crime had been proved beyond reasonable doubt, therefore failure to investigate the defence of alibi set up by the accused was immaterial.
Further, the learned trial judge disbelieved and rejected the evidence of DW2 (the co-security with the appellant) and Exhibit ‘D’ his statement to the police, cannot therefore rightly hold that any of the security guards could have left DW1’s residence with his rifle thus utilizing the same Exhibit ‘D’ that had been rejected to determine who locks the gate, at page 48 of the printed records when he held thus:
“DW2 is not a witness of truth and this I so hold, I do not find his testimony in court worthy to act upon and neither can I act on “Exhibit ‘D’.”
The Police Officer PW3, at page 16 of the record, stated that he took over a cartridge from the Investigating Police Officer W/PC Salau who was not called to testify but her statement was tendered as Exhibit ‘B’. No explanation was given as to why a police officer who investigated an offence as serious as an armed robbery offence carrying a death sentence did not give evidence, her absence was not explained.
The cartridge allegedly recovered by her and given to the PW3 was not tendered in court but was said to be with the Exhibit keeper. Meanwhile PW1 testified that a live cartridge and two expended ones were recovered at the scene, none was tendered in court. The prosecution did not attempt to investigate the type of licensed arms the DW1 said he had and tried to match the cartridge, to confirm or otherwise if the arms of the DW1was the one used on the night of the incident.
In agreement with the learned Appellant’s counsel’s argument the two tenants who were allegedly missing in the morning of the incident were not later questioned by the police, in the same way the third security man at DW3’s place of work was not questioned.
The Appellant’s contention is that the PW2 claimed to have identified him, did so out of malice. The appellant early enough said he was elsewhere on the night of the armed robbery; it was therefore the duty of the court to test this defence/evidence against the evidence led by the prosecution in rebuttal of the defence.
Reliance on voice identification only of the appellant by the PW2 without looking at all the other surrounding circumstances and the evidence led is fatal. In Exhibits ‘F and ‘C’ the appellant from the beginning denied taking part in the armed robbery, the learned Respondent’s counsel was wrong to have argued that the appellant never denied committing the offence. The court is duty bound to consider any defence of the accused against the totality of the evidence led by the prosecution. I am afraid this was not done in this case.
The onus to establish the guilt of the appellant remains on the prosecution throughout the case, the prosecution failed to do so in this case.
Once there is doubt, it has to be resolved in favour of the accused/Appellant. From the totality of the evidence, I hold that the trial court with due respect was wrong in rejecting the defence of alibi raised by the appellant.
In the final analysis, I allow the appeal. In consequence, I quash the conviction and sentence to death by hanging and substitute same with a verdict of not guilty.
I hereby discharge and acquit the Appellant.
Other Citations: (2009)LCN/3436(CA)
