David Omotola V The State (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

Thirteen accused persons including the five appellants were arraigned before the High Court, Ado-Ekiti for conspiracy and murder of one Chief Olajide Esan on 18th June, 1999 at Ikoro-Ekiti in Ekiti State of Nigeria. Before the trial commenced, two of the accused persons had died.

The accused persons were tried by Kowe J. The prosecution called 24 witnesses in all. Some of the accused persons testified in their own defence and called witnesses. On 12-01-05, the trial judge delivered judgment. The 2nd, 3rd, 5th, 8th, 9th and 11th accused persons were discharged and acquitted. The 1st, 6th, 7th and 10th accused persons were found guilty of the offences of conspiracy to murder and murder of Chief Olajide Esan on 18/6/99. Each was sentenced to death. The 4th accused was found guilty on the first count of conspiracy to murder but not guilty of murder and sentenced to 14 years imprisonment. Each of the accused persons who were found guilty including the 4th accused was dissatisfied with the judgment of the trial court. Each brought an appeal before the Court of Appeal, Ilorin (hereinafter referred to as the court below). On 10-12-07, the court below in its judgment dismissed the appeal of each of the appellants and affirmed the conviction and sentence imposed by the trial judge. The appellants have come on a final appeal before this Court. The 1st and 2nd appellants jointly retained one counsel who filed a brief for them while each of the 3rd, 4th and 5th appellants retained a separate counsel. This has imposed the necessity to consider serially each of the appellant’s brief filed by the different counsel.

In the appellant’s brief filed by counsel for the 1st and 2nd appellants (who were respectively the 1st and 6th accused persons before the trial court), the issues for determination in the appeal were stated to be the following:

“1. Whether the Court of Appeal was not in error in pronouncing upon the remote and immediate causes of the murder of the deceased before considering the issues submitted for its determination and whether the approach of the Court of Appeal has not occasioned miscarriage of justice on the appellants.

2. Whether the Court of Appeal was not in error in dismissing the defence of alibi raised by the appellants.
3. Whether the Court of Appeal was not in error in affirming the conviction of the appellants thereby failing to apply to the appellant’s benefit favourably available evidence on record and in placing reliance on the evidence of tainted witnesses called by the prosecution.
4. Whether the Court of Appeal was right in affirming the conviction of the appellants on weak circumstantial and contradictory evidence adduced by the prosecution.
5. Whether the Court of Appeal was right in affirming the conviction of the appellants when their guilt was not proved beyond reasonable doubt and the issue of their identification was riddled with so many irregularities.”

The respondent’s counsel in his brief adopted the five issues for determination as formulated by the appellant’s counsel.

It is desirable, for an appreciation of the facts as discussed in this judgment to expose fully the nature of the events or history leading to the murder of the deceased, Chief Olajide Esan. Necessarily, the preamble as discussed relates to all the appellants in this appeal and not just the 1st and 2nd. The case of the prosecution was that nearly all the accused persons in the case were residents of a town called Ikoro-Ekiti or who had something to do with the said town. Both the 1st appellant and the deceased were well-known personalities in the town and it would seem that each had a respectable followership in relation to two distinct issues which caused a schism between them. The Oba of Ikoro-Ekiti died. There was the need to appoint a successor. The 1st appellant and the deceased supported rival candidates. This also led to a civil suit instituted by the deceased against the 1st appellant for libel. The deceased, a lawyer, had judgment in his favour for N55,000.00 as damages for libel against the 1st appellant. Another cause of disagreement arose out of the desire of the deceased to set up a road transport union with the object of reducing the transport fares payable by the commuters in Ikoro-Ekiti who regularly travelled to adjoining towns. The 1st appellant was the head of another union which had regulated transportation fares in Ikoro-Ekiti which fares the deceased considered excessive and exploitative. The deceased got some people around himself to launch the union on 14-6-1999. It was given in evidence that the 1st appellant and his group resisted the attempt by the deceased to set up what was considered a rival union. Bonfires were lit on the highway leading to the township. A new launching fixed for 14-06-1999 was in the process aborted. A new date was fixed for 18/6/1999. There was evidence before the trial court that the 1st appellant’s group openly said that the deceased would not live to take part in the launching fixed for 18/6/1999. It turned out that indeed, the deceased was murdered in the night of 17th – 18th June, 1999 only a few hours before the scheduled launching.

Now, to the first of the issues raised by counsel. Was the court below in error to have first broadly stated the background facts on the nature of the case against the appellants before considering the issues for determination in the appeal before it The appellant’s counsel has argued that the court below had virtually pre-accepted the facts relied upon by the prosecution at the trial court before considering the case of the appellants in the appeal. It was submitted that this approach resulted in a miscarriage of justice.

A perusal of the lead judgment of Agube J.C.A. at the court below shows that the learned Justice first reviewed the nature of the rancorous situation that existed between the 1st appellant and the deceased before considering the issues for determination in the appeal. I do not think that this was a wrong approach in the writing of a judgment. It is in my humble view, a good approach to preface the consideration of issues with an explanation of the matters which led to the occurrence or dispute over which the court is called upon to adjudicate. This enables a reader of the judgment to understand the issues as discussed later in the judgment. A judgment may appear abstract and unintelligible to a reader who had not previously known the antecedents of a matter being considered. An exposition of the background facts leading to a dispute ought not to harm the case of any of the parties unless the court in such exposition demonstrates an acceptance or rejection of the defence or the prosecution’s case. The court below in this case had opened its judgment by stating thus:

“Before delving into arguments of counsel and the resolution of the issues formulated, it is only pertinent to give a resume of the facts of the case. As can be gleaned from the evidence, which the trial court accepted in relation to the five appellants in this appeal, the deceased, a seventy-six year old legal practitioner of forty-two years post-call was before he met his gruesome death and at all times, material to this case, the Chief Sakoro or head of Kingmakers in Ikoro-Ekiti and second only in rank to the Olukoro of Ikoro (otherwise, the Oba of Ikoro)”

As made clear in the above passage of the judgment of the court below, the learned Justice of the court below who wrote the lead only opened its judgment by highlighting or restating the facts which the trial court had accepted. I do not see how the statement could be considered as injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to judges. Each judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt.945) 331 at 334-335 where he said:

“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some well-known constituent parts. Thus, some of the constituent parts which a good judgment must contain in case of a trial court include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law as resolved; and (5) the verdict and orders made by the court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 at 407-408; Mogaji v. Odofin (1978) 4 SC 9; Ojogbue v. Nnubio (1972) 1ANLR (Pt.2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt.750) 113 at 125.”

The result of the above is that issue 1 must be and is decided against the 1st and 2nd appellants.

The 2nd issue is a complaint by the 1st and 2nd appellants that the defence of alibi raised by them was wrongly rejected by the two courts below. The record of court clearly reveals that the appellants raised the defence of alibi. Appellants counsel has argued that the court below erred by failing to hold that the appellant’s defence of alibi ought to have succeeded having regard to the fact that there was evidence before the trial court to sustain the defence.

In his statement to the police,exhibit ‘L’ on 21-6-99, the first appellant had said:

“On the night of 17/6/99, I was in my house at Ikoro-Ekiti but none of the following (1) Hakeem Adebayo (m) and (2) Ayodele Ayinde (M) (3) Akoo Benson (m) came to me in my house for any meeting.”

In his evidence in court under oath, the 1st appellant said that he was in his house from 7p.m. on 17/6/99 to 6.00a.m on 18/9/99. The 1st appellant’s wife and son testified respectively as D.W.3 and D.W.4. Each gave evidence in support of the alibi raised by the 1st appellant. The trial court in its judgment at pages 387-388 of the record said concerning the defence of alibi:

“The plea of alibi put up by the 1st accused person will not avail him. He merely stated in his statement to the police that he was in his house at Ikoro-Ekiti on the night of 17/6/99 without giving the details of his whereabouts. He was not definite as to the time, place and persons who knew about his whereabouts. It was when he was giving evidence that he said that he was in his house between 7p.m. on 17/6/99 and 6a.m. on 18/6/99 with members of his family.

The defence of alibi is not readily conceded with levity to an accused person because when properly established,it has the far-reaching finality of exculpating the accused from complete criminal responsibility. To take advantage of this defence, the 1st accused must give a detailed particularization of his whereabouts on the day the crime was committed. This will include not just the specific place where he was but additionally the people in whose company he was and what, if any, transpired at the said time and place. Such comprehensive information furnished by the accused must, unquestionably be capable of investigation by the police. Such defence must be timeously brought to the attention of the police preferably in the statement of the accused in order to afford the police an ample time to carry out their investigation. For the 1st accused person to raise the defence while testifying at his trial is to deliberately deny the police its right and duty to investigate the defence. See Njiokuemeni v. The State (2001) 14 WRN 96 at 103; Yanor v. The State (1965) NMLR 337 at 341-342; Isong Akpan Udoebre v. The State (2001) 6 NSCOR (Pt. 11) 755 at 766-767.

The plea of defence of alibi by the 1st accused in his statement to the police (exhibit L) that on the night of l7/6/99 he was in his house at Ikoro-Ekiti without more is porous and vague. What is the police expected to investigate in that plea of the 1st accused He did not mention the location of his house, the names of who were with him, the time he was in his house. It is trite that the police are not expected to go on wild goose chase in order to investigate an alibi put forward by an accused person, It is my believe (sic) that the 1st accused did not discharge the evidential burden that is imposed on him. His defence of alibi cannot avail him, See Balogun v. Attorney-General of Ogun State [2002] 2 SCNJ 196 at 202; Okosi v. The State [1989] 1 SCLRN 29 at 41; Awopetu & Ors. v. The State [2000] 4 WRN 57 at 70.”

At pages 635-636 of the record, the court below in its reaction to the defence of alibi raised by the 1st appellant said:

“From the foregoings and taking into particular consideration the averments in Exhibit L, the extra-judicial Statement of the 1st Appellant, can we say that he discharged the evidential burden placed on him so as to sustain the defence of alibi raised by him Outrightly, the 1st Appellant merely said that he was in his house on the night of the 17th of June, 1999. He did not state sufficient particulars as to his whereabouts at the time of the commission of the offence, the name(s) of the person(s) who were with him and could testify to his being there at the time the crime was allegedly committed and even the time they were together. This non-particularization of the alibi fell short of the requirements of the law as laid down in the long line of cases decided by the Supreme Court that it is not enough to raise the defence of alibi at large but that the Accused must go further to furnish adequate particulars which would assist the police to make meaningful investigation of the alibi.

In the instant case, the 1st Appellant never gave a lead as to the specific address(es) of the place(s) or persons to contact and the relevant period he was away from the scene of crime. This he should have done at the earliest opportunity when the facts of the case were still very fresh in his memory. Surely, it was not enough for him to simply say he was in his house at Ikoro-Ekiti on the night of 17th June 1999. See the dictum of Uwaifo JSC in Balogun v. A. G. Ogun State (2002) 4 M.J.S.C. 45 at 59. As at the time he gave evidence in Court along with the DW3 and DW4 where the deficiency in his alibi was to be remedied, it became too late for the police to have investigated the alibi. As Uwaifo JSC in Balogun v. A.G. Ogun State (supra) succinctly put it”

‘it seems to me that the police would not be allowed to go on a wild goose chase’, at Ikoro-Ekiti to ferret out particulars of the whereabouts of the 1st Appellant, the persons who were with him and the time he was wherever he purported to have been during the Commission of the offence. See Njoven ‘s case (supra) and Obiode v. The State (1970) 1 All NLR 35.”

It seems to me that the two courts below were in error in the peremptory manner they dismissed the defence of alibi put up by the 15th appellant. Certainly the 1st appellant gave sufficient information as to his whereabouts at the time the deceased was murdered. It was one thing for the trial court to reject the evidence called in support of the alibi raised as unbelievable and quite another to say that the 1st appellant did not give the details of his movements. The 1st appellant had not been told the specific time the deceased was killed in the night of 17/6/99, he could not have been any more specific than state that he was in his house in the night of 17/6/99. The reasoning of the trial court that the 1st appellant did not state his address is incorrect. The 1st appellant’s address was clearly stated on exhibit ‘L’ as No. 88, Mogaile Street, Ikoro-Ekiti.

The law on the defence of alibi has been stated by this Court in a number of cases. One of them is Arabamen v. The State [1972] 4 SC.30 at 35 where Lewis J.S.C. said:

“In our view, as we have said, though we agree the onus is on the prosecution to disprove the alibi, as the learned judge rightly stated, since we said in Adedeji v. The State SC.324/70 (unreported) of the 19″ February, 1971: We think that what he was intending to say, though he might perhaps more happily phrased it, is that if an accused person wishes to put forward an alibi, it is for him to offer evidence accordingly but if he does put forward evidence, the onus is not on him to satisfy the jury that the alibi on such evidence is established but for the prosecution to disprove the alibi. We must emphasize that there is no onus on the accused to satisfy the jury on the alibi once he has put forward evidence which might establish it. (cf. R v. Johnson (1961) 1 WLR 1478 and Yanor v. The State (1965) NML.R. 337”

One of the ways by which the prosecution may disprove an alibi is to call evidence against it which is cogent, substantial and credible. The fact that an accused has raised an alibi by his evidence or that of his witnesses does not imply that the alibi must be accepted by a court. If the evidence called by the prosecution is credible, strong and compelling, the court may reject the defence of alibi. In Fatoyinbo v. Attorney-General, Western Nigeria [1966] W.N.L.R. 4 this Court by Coker JSC. observed:

“…Where a defence of alibi is suggested or timeously put forward by an accused person, the onus resting on the prosecution is no more than that of adducing as much evidence as, if accepted, would demolish the suggestion or inference that the accused person was not available at the scene of crime at the material time and satisfy the court or jury of the contrary. Admittedly, where such a defence is put forward in such a manner and at such a time as to enjoin on the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the prosecution. That does not warrant nor justify the suggestion that the prosecution specifically has to rebut in a particular way the defence of alibi. In the present case, the evidence of the third prosecution witness fixes the appellant at the scene where the deceased was murdered. That evidence was accepted by the learned trial judge and though his statement to the police was produced, the appellant himself gave no evidence in support of it or other wise and called no witnesses. It is clear that on the totality of the evidence before the court and accepted by it, the prosecution had established that the suggestion in the statement of the appellant that he was elsewhere on the day and time of the crime was incredible.”

In this case, the trial judge at page 388 of the record in his judgment said:

“I do not believe the evidence of the 1st accused and his witnesses that he was in his house from the evening of 17/6/99 till the morning of 18/6/99. The alibi of 1st accused will not avail him.

I believe the evidence of P.W.7 that he heard the 1st accused talking about the launching of Road Transport Employees Association of Nigeria. He said that he was conversant and close with the 151 accused who spoke at the scene of crime. P.W.7 evidence was not challenged nor contradicted by the defence. There is therefore no reason to doubt his evidence.

There is evidence that the 151 accused person held a meeting with some people in April 1999 where he boasted that the deceased would be no more within the next six months vide the evidence of P.W.2 He made that statement in April 1999 when P. W.2 and others went to appeal to him to desist from formenting trouble on the issue of Olukoro chieftaincy. P. W.3 testified that on 17/6/99 at about 8.30p.m. he saw the 4th and 7th accused persons coming out of the house of the 1st accused and that the 4th accused told him that the launching of a rival drivers Union (Road Transport Employers Association of Nigeria) slated for 18/6/99 would not take place because something would happen between the night of 17/6/99 and morning of 18/8/99 that would prevent the launching. P.W.3 added that that was why the 1st accused was at Ikoro-Ekiti that day. The 4th P.W. said that he was with the deceased in the evening; of 17/6/99 when P.W.3 narrated to the deceased what the 4 accused told him about the plan of the 1st accused to prevent the launching of the rival drivers Union by overt acts between the night of 17/6/99 and morning of 18/6/99. P.W.3 and P.W.5 said that they saw the 1st accused and other accused persons at the spot where members of the National Union of Road Transport Workers blockaded and made bonfire on the road leading to Ikoro township on 14/6/99. P.W.13 said that Ikoro Youth Movement was holding meetings in the house of 1st accused to discuss Olukoro chieftaincy matter regularly.”

When a court has rejected a piece of evidence as incredible, it has no evidential value of any kind. It seems to me that the trial court having rejected as incredible the evidence called by the 1st appellant in support of the defence of alibi which he raised, it is no longer open to defence counsel to argue that there was evidence in support of the defence. It is my view that the defence of alibi raised by the 1st appellant was properly rejected by the courts below, the evidence called in support of it having been found incredible.

The 2nd appellant also raised the defence of alibi. The trial court however rejected it in these words at pages 393 – 394 of the record:

“The 6th accused person pleaded alibi which was investigated by the police. P.W.20 and P.W.21 who investigated the alibi testified that they visited Area H Ogudu Ojota Police Station Lagos and confirmed that the 6th accused was there and left 12 noon on 17/6/99.

But the 6th Accused and his wife (D.W.9) testified that they returned to the Police Station at 5p.rn. on 17/6/99 and left the place at 8pm same day for their house at No. 35, Alhaja Abass Ogudu Lagos where they slept till the morning of 18/6/99. I do not believe the evidence of the 6th accused and his wife that they went back to Area H Ogudu/Ojota Police Station at 5p.rn. on 17/6/99 and returned home at 8p.m. that day. If it were so the police at Area H Ogudu Ojota Police Station would have told P.W.20 and P.W.21 who investigated the alibi that the Accused left the Police Station at 8pm. on 17/6/99. I believe the evidence of P.W.20 and P.W.21 that the 6th accused left the Area H Ogudu Ojota Police Station at 12noon on 17/6/99. I believe the evidence of P.W.7 that he saw the 6th accused at the scene of crime and identified him at the identification parade conducted at the Police Station Ado-Ekiti later. I believe the evidence of P.W.11 that the deceased shouted the appellation of the 6th accused ‘Akoo Akoo’ when he was being attached (sic) by the murderers. P.W.7 also testified that he saw the 6th Accused at the scene of crime. He identified the 6th Accused at an identification parade. He was able to recognize the 6th Accused person because the 10th accused person lit a chargeable lamp which illuminated the scene. There is no dispute on the identity and identification of the 6th accused. The identification parade was not defective but was properly conducted. There was no objection or evidence that those with whom the 6th Accused was lined up were not of similar physical stature with him. There was no objection or evidence of the 6th accused ever been pointed to by the 7th P.W. at the parade. It was his counsel who, in his submission was trying to impute what was not brought up in evidence. P.W.7 did not testify that when she wanted to point to another person, police disallowed her.

What she said was that she identified the 6th accused person amongst a group of people lined up for identification parade. There was no dispute about the identity and identification of the 6th accused by P.W.7. Her evidence is enough corroboration of the evidence of P.W.20 and P.W.21 that the 6th Accused left Area H Ogudu/Ojoto Police Station at 12 noon on 17/6/99, See Okasi v. State (1989) 1 NWLR (Pt. 100) 642 at 644. It is possible for the 6th accused to travel to Ikoro after he left OguduJOjota Police Station at 12 noon on 17/6/99.”

The reason why the trial court rejected the 2nd appellant’s evidence in support of the alibi he raised is quite manifest in the passage from the judgment reproduced above. I think that the court below was right to affirm the finding of fact made by the trial court. At pages 627 – 628 of the record, the court below held:

“However, if in spite of the evidence of alibi the evidence of the prosecution is shown to be stronger than the alibi proffered by the accused as a defence, and such evidence still fixes the accused at the scene of crime then the alibi can be appropriately rejected. See Adetola & Ors. v. The State (1992) 4 NWLR (Pt.233) 267 at 274 paras D – E where Orno JSC held:

‘As against this pleas (of alibi) is the visual identification evidence of the P.W.1 and P.W.3 which the Court believed, and which therefore effectively destroyed 1st appellant’s attempt at pleading an alibi, vide Njovens v. The State (1973) SC.17; Madagawa v. The State (1988) 5 NWLR (Pt.92) 60 (74).

In Ukwunnenyi & Anor. V. The State (1989) 3 N.S.C.C 44 at Held 7; and also Mathew Agu v. The State (1985) 2 N.S.C.C. 1195 it was held that ‘when the prosecution produces evidence which the Court accepts, fixing the Accused with presence at the scene of crime that effectively destroys the alibi.’

From the totality of the evidence elicited by the prosecution and the Accused/Appellant the Court accepted the testimonies of the witnesses for the prosecution as having fixed the 2nd Appellant at the scene of crime on that day of the incident of the murder of Chief Olajide Esan.

Following the dictum of Nnaemek-Agu JSC in Esangbedo’s case (supra) and Omo JSC in Adetola’s case, the trial judge considered the alibi for whatever it was worth and found out rightly in my view that it was possible for the 6th Accused to have left Lagos to Ikoro after leaving Area H Ogudu/Ojota Police Station at 12.00 noon having believed the stronger evidence of the prosecution witnesses. Accordingly,the alibi was rightly dismissed.”

It is my view that the evidence of alibi called by the 2nd appellant was properly rejected by both courts below.

I intend to consider together issues 3, 4 and 5 raised by the 1st and 2nd appellant’s counsel. Under these issues, appellant’s counsel contends that the evidence called by the prosecution when viewed as to its quality and quantity was not sufficient to establish the guilt of the 1st and 2nd appellants beyond reasonable doubt. Counsel also contends that the evidence given by D.W.2 clearly shows that the evidence given by P.Ws. 7, 10 and 11 was influenced or teleguided by some persons who had a score to settle with the appellants. It was further submitted that the circumstantial evidence upon which the trial court and the court below relied did not irresistibly point to the guilt of the appellants. It was finally submitted that the two courts below did not take into account the evidence that some night marauders or armed robbers had invaded Ikoro-Ekiti town in the night of 17/18 June, 1999.

Appellant’s counsel made a great play of the fact that P.W.s7, 10 and 11 were tainted witnesses whose evidence for the prosecution ought to have been approached with circumspection. Were they tainted Witnesses I think not. In Adetola v. The State [1992] 4 NWLR (Pt.235) 267 at 273, the Court Per Omo JSC considered the issue when a witness may be regarded as a tainted one, He said:

“A tainted witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as ‘having some purpose of his own to serve’ (1) The State v. Dominic Okolo & Ors.[1974] 2 S.C. 73,82; [1974] 1 All NL.R. 466, 474; (2)

Ishola v. The State [1978] 9-10 S.C. 81, 100; (3) Mbonu v. The State [1988] 3 NWLR (Pt.84) 615. The Supreme Court has held that the evidence of such a witness should be treated with considerable caution and be examined with a tooth comb”

It was undisputed that P.W.s7, 10 and 11 are the children of the deceased. But did that fact alone make them tainted witnesses I do not think so. Every citizen has the duty to come forward and offer assistance in the diligent detection and-prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in a court case. But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased or tainted. I am unable to accept the submission that the evidence of P.Ws. 7, 10 and 11 was lacking in the requisite quality and objectivity just for the reason that they were the children of the deceased. It would have served the interests of the appellants better if counsel concentrated in showing that they did not observe what they claimed to have witnessed or that their evidence in some way was incredible. Asking that their evidence be rejected as tainted witnesses just because they were the children of the deceased is in my view unhelpful.

The appellant’s counsel also submitted that the circumstantial evidence available did not lead irresistibly to the inference that the appellants committed the offence brought against them. The nature of circumstantial evidence and its reliability in criminal cases have been considered by this court on several occasions. In Ukorah v. State (1977) 4 S.C. 111 at 115-116, this Court per Idigbe J.S.C. observed:

‘Circumstantial evidence is as good as, sometimes better than, any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence’

(Humphrey, J., in Rex v. Chumg and Miao, cited in Wills on Circumstantial Evidence, Seventh Edition (1936) p.324). And, again, the learned author of Wills on Circumstantial Evidence on the same page makes reference to a direction of the court (and to which, we think, we should draw attention, with approval) in the case of Emperor v. Browning 39 L C. 322 where it was stated:

‘In a case in which there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task; you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear, you must ask yourselves, is this sufficient proof It is not sufficient to say, ‘if the accused is not the murderer, I know of no one who is. There is some evidence against him, and none against anyone else. Therefore, I will find him guilty.’ Such a line of reasoning as this is unsound, for experience shows that crimes are often committed by persons unknown who have succeeded in wholly covering their tracks ….’ See also Adie v. State [1980] 1- 2 SC.116.

The evidence against the 1st and 2nd appellants is quite substantial. It is more than circumstantial. A group of assailants in the night of 17th /18th June, 1999 went to the house of the deceased. They attacked and killed him. The 1st and 2nd appellants were in the group. They were later physically identified at an identification parade as being in the group. It seems to me that the attempt by the appellant’s counsel to trivialize the presence of the appellants at the scene of crime in the dead of the night, which said presence was never explained, only serves to strengthen the prosecution’s case against the appellants. I am unable to accept the submission of counsel for the 1st and 2nd appellants that their guilt was not established on the standard required by law. It is my view that the two courts below were right in finding them guilty on the charges brought against them.

Now to the 3rd appellant who was the 7th accused person before the court below. In the appellant’s brief filed by his counsel, the issues for determination in the appeal were identified as the following:

“1. Having regard to the fact that no mandatory tests were conducted on P.W.10 as a minor before admitting his evidence, whether the conviction for murder of the 3rd appellant was based on legally admissible evidence whatsoever before the court.

2. Having regard to the fact that the case against the 3rd appellant depended on the propriety and exactitude or otherwise of a minor (P.W.10) whether the court below was right in affirming the conviction of the 3rd appellant.
3. Whether the 3rd appellant received a fair hearing at the court below and whether the court below did not misunderstand his case when it proceeded to affirm his conviction for murder on a very wrong assumption that he was convicted for conspiracy to murder by the trial court and could not therefore escape conviction”

I intend to consider together issues 1 and 2 above and separately issue 3. The argument of counsel under these two issues is that P.W.l 0 was a minor at the time he testified for the prosecution and that it was an error on the part of the trial court not to have conducted in court a mandatory test on P.W.10 to determine whether or not he understood the nature of an oath. Counsel relied on Sambo v. State (1993) 6 NWLR (Pt. 300) 399 at 413-414; Mbale v. State (1990) 4 NWLR (Pt.145) 484; Agenu v. State (1992) 7 NWLR (Pt. 256)749 at 766. In Sambo v. State (supra) Ogundare J.S.C. at page 413-414 observed:

“In this case on appeal, it is not disputed that at the time the offence was committed the prosecutrix was only ten years old and therefore she was a child. She cannot in law give her consent to sexual intercourse. Consequently her evidence must be corroborated. The record shows that her evidence was not in conformity with Section 182(1) of the Evidence Act as there was nothing to show how she was examined. The record merely shows a conclusion of what happened; it ought to have stated how the learned trial judge came to the conclusion that she ‘knows the nature of an oath but does not know the consequence of telling a lie.”

Similarly in Mbale v. State (supra) this Court stressed the necessity to carry out the requisite investigation in court to satisfy itself that a child called to testify in a criminal case understands the nature of an oath.

Now the Criminal Procedure Act defines a child to mean “any person who has not attained the age of fourteen years.”

Section 183 of the Evidence Act Cap.I12 provides:

“183. (1) In any proceeding for any offence, the evidence of any child who is tendered as a witness and does not, in the opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

(2) If the court is of opinion as stated in subsection (1) of this section, the deposition of a child may be taken though not on oath and shall be admissible in evidence in all proceedings where such deposition if made by an adult would be admissible.

(3) A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused.

(4) If any child whose evidence is received as aforesaid willfully gives false evidence in such circumstances that he would if the evidence had been given on oath have been guilty of perjury, he shall be guilty of an offence against section 191 of the Criminal Code and, on conviction, shall be dealt with accordingly.”

At page 8 of the 3rd appellant’s brief, the appellant’s counsel writes:

“Instructively, P.W.10 on whose evidence the 3rd appellant was convicted and sentenced to death is a minor. From the address of the 3rd appellant (7th accused’s) counsel which can be found at page 307 of the record of appeal, he submitted to the court that P.W.10 was 12 (twelve) years old at the time he gave the evidence at the High Court. This submission was neither countered by the prosecution at the High Court nor was it addressed by the High Court Judge in his judgment.”

It is manifest that the appellant’s counsel relies solely on the submission of appellants’ counsel before the court below as the proof of the age of P.W.10. But the evidence given by P.W.10 as to his age which was not challenged by the defence clearly shows that he was 17 years old when he testified on 11-03-03. At page 197 of the record P.W.10 said:

“My names are Oyedele Esan. I am seventeen years old. I am a student. I am here to testify about the murder of my father on 17th /18th June, 1999.”

Under cross-examination by Mr. Ajayi, of counsel for the appellant, P.W.10 said:

“I was 14 years old when the incident happened… I am familiar with the 7th accused. He used to come to our house and we play table tennis together. I mentioned his name to the police in my statement. I told the Police all that I am telling the court in my evidence.”

On the evidence available before the trial court, this was not a case in which the trial court needed to conduct an examination in the open court to ascertain whether or not P.W.10 understood the nature of an oath. I think that the submission of the appellant’s counsel as to the age of P.W.10 and the necessity to orally examine him in court as to his understanding of the nature of an oath is not well premised. I reject it. I must give thought to the contention of counsel that the evidence against the 3rd appellant was that of a minor and that the court below was in error to have affirmed his conviction, I can only make reference to the findings of the court below at page 395 of the record:

“As to the 7th accused person, Mr. Ayodele Ayinde there is evidence linking him with the murder of late Chief Olajide Esan. P.W.10 Oyedele Esan, one of the children of the deceased who was at the scene of crime at the time the deceased was killed testified that he saw the 7th accused at the scene of crime on the night of 17/6/99 early morning of 18/6/99. He described the 7th accused as light in complexion, not too tall and with ‘K leg’. He added that the 7th accused was a revenue collector in the motor park. Under cross-examination P.W.10 said that he was familiar with the 7th accused that used to come to the house of the deceased to play table tennis with the children of the deceased. The statement of P.W.10 is not different from his evidence. In his statement made on 18/6/99 when the matter was still fresh, P.W.10 described the 7th accused as light in complexion, with ‘K leg’ and a tax collector. He said that he was able to recognize the 7th accused because the murderers lit their torches. At a later date P.W.10 was able to identify the 7th accused person at an identification parade conducted at the Nigeria Police Station Ado-Ekiti. Under cross-examination witness denied that the murderers masked. He said that he was familiar with the 7th accused thereby erasing the question of mistaken identity. I observe that the description of 7 accused by P.W.10 is correct. Failure to mention the name of the 7th accused to the police is not fatal to the case of the prosecution in as much as the 10th P.W. had vividly described him to the police. His description of the 7th accused was not faulted under cross-examination and by evidence. He later identified him at the identification parade at Ado-Ekiti Police Station thereby confirming his statement to the Police.”

I do not accept that the court below was in error to have affirmed the findings of the court below. As for the complaint of the appellant’s counsel as to the propriety of the identification parade at which P.W.10 identified the 3rd appellant as one of those who attacked the deceased on 17th/18th June, 1999, I need only say that in as much as there was evidence which the trial court accepted that P.W.10 knew the appellant very well before the date of the murder, it was not necessary for a formal identification parade. P.W.10 testified that the 3rd appellant regularly come to play table tennis in the house of the deceased. P.W.10 even knew him to be fair complexioned tax collector with ‘K-Ieg’, which description fitted the 3rd appellant. I think that the case against the 3rd appellant was established as required by law.

The 3rd issue is a complaint against the observation of the court below at page 671 of the record thus:

“From their conduct before and after the murder of the late Chief, especially the incident of 14-6-99, their utterances, attempts at his life and threats either by words or letter and the fact that all of them were fixed at the scene and had attended meetings in the house of the 1st appellant prior to the dastardly act, more so when after murdering him, a N10.00 note was placed on his palm, circumstantial evidence which sufficiently proved conspiracy against all the accused persons were elicited to warrant their conviction by the lower court.

The contention of the appellant’s counsel is that the 3rd appellant was not convicted of the offence of conspiracy by the trial court as implied by the court below. It is correct that the 3rd appellant was not convicted by the trial court on the offence of conspiracy brought against him. In deed at page 397 of the record, the trial court said:

“The 7th accused is found guilty of the murder of Chief Olajide Esan and I so convict him. He is however not found guilty of conspiracy to murder and he is discharged and acquitted on count 1.”

The thrust of the argument of appellant’s counsel is that the trial court not having convicted the 3rd appellant on conspiracy but on murder, it was wrong of the court below to affirm the conviction of the appellant for murder. I do not see any logic in the submission of counsel since it is not the requirement of the law that a person charged on the offences of conspiracy to murder and murder must first be found guilty of conspiracy before he could be guilty on the offence of murder. The mistake of the court below is innocuous and ought to be forgiven. I elect to overlook it.

On the whole I am satisfied that the 3rd appellant was properly convicted of the offence of murder.

The 4th appellant was the 10th accused before the trial court. His counsel has raised five issues for determination in the appeal. The issues are:

“1. Whether the Court of Appeal was not in error in pronouncing upon the remote and immediate causes of the murder of the deceased before considering the issue submitted for its determination and whether the approach of the Court of Appeal has not occasioned miscarriage of justice on the appellant.

2. Whether the Court of Appeal was not in error in dismissing the defence of alibi raised by the appellant.
3. Whether the Court of Appeal was not in error in affirming the conviction of the appellant thereby failing to apply to the appellant (sic) benefit favourable evidence available on record and in placing reliance on the evidence of tainted witnesses called by the prosecution.
4. Whether the Court of Appeal was right in affirming the conviction of the appellant on weak circumstantial and contradictory evidence adduced by the prosecution.
5. Whether the Court of Appeal was right in affirming the conviction of the appellant when his guilt was not proved beyond reasonable doubt and the issue of his identification was riddled with so many irregularities.”

The issues formulated by the 4th appellant’s counsel reproduced above are in some ways similar to the 1st and 2nd appellants’ issues.

I have in the consideration of the 1st and 2nd appellants’ issues dealt with 4th appellant’s issue 1 above. I do not have anything to add save to say that issue 1 is resolved against the 4th appellant.

Issue 2 is a complaint that the defence of alibi raised by the 4th appellant was not properly considered by the court below. The 4th appellant at page 292 in his defence before the trial court raised the defence of alibi for the first time. He said:

“I know nothing about the murder of Chief Olajide Esan. I was in my house on 14/6/99 till 2p.m. when I was arrested by the police on a report lodged by one Jimoh Famuyiwa (alias Ojaye) against me. I was locked up and I made statement to the police. I was in the police cell at Ijero from 14th June to 17th June, 1999. I was released at 6p.m. on 17m June, 1999. I went to my house to sleep because I was already worn out. I did not wake up until 6a.m. on 18/6/99 when my wife came to wake me up and told me that there was commotion in the town because Chief Esan Sakoro had been murdered.”

The trial judge very painstakingly considered the defence of alibi raised by the 4m appellant. At pages 397 to 398, the trial judge said:

“As to the 10th accused person, Mr. Akeem Adebayo, there is evidence that he was seen at the scene of crime. P. W. 7 testified that he saw the 10th accused at the scene of crime. He saw him clearly because the 10th accused held and lit a chargeable lamp which illuminated the scene of crime. Under cross-examination P.W.7 said that he knew the 10th accused very well and saw him clearly because the chargeable lamp he held and lit illuminated the area he was. P.W.11 also testified that he saw the 10th accused at the scene of crime on the night of 17/6/99/ morning of 18/6/99. He said that at that material time, he saw the 10th accused, the 10th accused wore a dress with red lining. He added that at the scene, the 10th accused looked at him and other children of the deceased and pushed them aside saying ‘these are his children we have nothing to do with them.’ He identified the 10th accused at an identification parade conducted by the police at Ado-Ekiti Polcie Station as the person he saw at the scene of crime during the time the deceased was murdered. Under cross-examination, witness said that he has been seeing the 10th accused before that night. He denied that there was armed robbery at Ikoro-Ekiti that night.

The 10th accused denied participating in the murder of Chief Olajide Esan. He said that he slept in his house on the night of 17/6/99 to the morning 18/6/99. The 10th accused did not raise his defence of alibi timeously. He put up that defence for the first time in the witness box. For the 10th accused to successfully put up the defence of alibi, he must raise the plea timeously giving the particulars of his whereabouts, those with whom he was, the time and place he was at the time the crime was committed. See Udoebre v. The State (supra) at PP. 766-767. Since the 10th accused did not raise the alibi timeously he had denied the prosecution its right and duty to investigate that defence. The 10th accused’s defence of alibi for the first time in the witness box will not avail him. See Yanor v. The State (supra); Balogun v. A-G. of Ogun State (supra) at 202-203.

The 11th P.W. identified the 10th accused at an identification parade as the person he saw at the scene of crime. There was no dispute as to the identity of the accused. The 11th P.W said that he knew him very well and described the dress the accused wore when he saw him at the scene of crime.

Under cross-examination P.W. 11 said that he had been seeing the accused before that night. In his evidence-in-chief, he said he was able to see the accused clearly because the chargeable lamp he held and lit illuminated the area.

The 10th accused did not dispute the description of the dress P.W.10 said he wore that night. The accused confirmed that P.W.11 knew him very well. He only complained about his identification at the identification parade. I do not believe his evidence and that of his witnesses on his defence of alibi. There is contradiction in their evidence. The contradiction is fatal to the case of the accused.

While the 10th accused said that he slept in his house at Mogadi Street, Ikoro on the day of the incident, D.W.12 said that the 10th accused, his mother and sister and herself slept in the house of their mother at Orin Street, Ikoro that night. I prefer the evidence of P.W.7 and P.W11 to that of the 10th accused and his witnesses. There is no question of mistaken identify because there is evidence that P.W11 knew the 10th accused very well. P.W.II described the dress worn by the 10th accused during the time he saw him at the scene of crime on the night of 17/6/99/ morning of 8/6/99 as lined with red. There is evidence that the accused held and lit a chargeable lamp at that material time and that the scene of the crime was illuminated. Those pieces of evidence were not controverted nor challenged. There was no suggestion that P.W.7 and P.W.11 wee either lying or mistaken. P.W.24 witnessed the identification parade. There were eight men on parade including the accused (vide exhibit U2). Since there was no dispute about the identity of the accused and his alibi was dislodged by the prosecution there will be no reason why the evidence of P.W.7 and P.W.11 which I believe, cannot ground and sustain the conviction of the 10th accused person. See Joshua Alonge v. Inspector General of Police (1959) 4 FSC 203; Onafowokan v. The State [1987] 3 NWLR (Pt. 61) 538 at 552.”

The court below correctly affirmed the findings of fact made by the trial judge. I do not have any reason to fault the reasoning of the court below. The evidence against the 4th appellant was so overwhelming such as not to give the two courts any other choice than reject the defence of alibi raised. As I said earlier in this judgment, when the evidence called in support of the defence of alibi is rejected as being incredible and the evidence of prosecution witnesses fixing the accused at the scene of crime is accepted, the defence of alibi collapses. While it is desirable that an alibi be raised timeously to enable the prosecution investigate it, it is still capable of being displaced by credible and substantial evidence from the prosecution. I decide issue 2 against the 4th appellant.

I now take together issues 3, 4 and 5. These raise the question about the nature of the prosecution’s evidence against the appellant. Did the evidence establish the guilt of the appellant beyond reasonable doubt Was the alleged circumstantial evidence called by the prosecution such as could not lead to the inference that the appellant participated in the murder of the deceased And finally, was there any evidence favourable to the appellant which the two courts below did not take into consideration I do not understand what the appellant’s counsel had in mind by his argument that there was evidence favourable to the appellant which was not taken into account. The evidence given by P.W.7 and P.W.11 was to the effect that the appellant was at the scene of crime holding a rechargeable lamp which enabled P.W.7 and P.W.11 to see him clearly. The appellant was subsequently identified and he agreed that P.W.s. 7 and 11 knew him well before the murder of the deceased. On the accepted evidence, the onus was on the appellant to explain what he was doing in the night of 17/6/99 in the midst of persons who came to murder the deceased. The evidence against the appellant was more than circumstantial and there is certainly no basis to describe the evidence available against the appellant as merely circumstantial when the appellant did not explain how he found himself in the midst of the murderers of the deceased. I am unable to see any evidence favourable to the appellant which was not taken into account. My view is that the evidence against the 4th appellant was overwhelming and damning leaving me with the satisfaction that the guilt of the 4th appellant was established on the standard prescribed by law.

I now come to the 5th appellant’s appeal. He was the 4th accused before the trial court. His counsel has formulated one issue for determination thus:

“Whether the Court of Appeal was right to hold that the prosecution had proved beyond reasonable doubt the offence of conspiracy against the appellant.”

The trial court had found the 5th appellant guilty on the offence of conspiracy to murder the deceased. The argument of the appellant’s counsel is that the evidence available against the appellant on the offence of conspiracy is insufficient and could not have established the guilt of the appellant beyond reasonable doubt. There is no doubt that the evidence against the 5th appellant on the count of conspiracy is rather brief. At page 173 of the record, P.W.3 said concerning the 5th appellant:

“On 17/6/1999 at about 8.3Op.m,I saw 4th, 7th accused persons and one Mr. Michael Ayo coming out of the house of the 1st accused. The 4th accused ran to us and greeted us. I was with Mr. Yusuf Bola. The 4th accused told me and Yusuf Bola that the launching of the RTEAN slated for 18th June, 1999 would not be launched. I asked why. He said that that was why the 1st accused was in the town. He emphasized that what would happen in the night of 17/6/99 morning of 18/6/99 would prevent the launching of the rival driver union. I reported what the 4th accused told me to the late Olajide Esan.

In his evidence, the 5th appellant denied that he had conspired with anyone to murder the deceased. The trial judge in his judgment at page 392 of the record in pronouncing the 5th appellant guilty of the offence of conspiracy observed:

“As to the 4th accused, the evidence against him is that of P.W.3 and P.W.9. P.W.3 testified that at about 8.30p.m. on 17/6/99, he saw the 4th and 7th accused persons emerging from the house of the 1st accused and the 4th accused ran to him and told him that the launching of the Road Transport Employees Association of Nigeria scheduled for 15/6/99 would not take place because something would happen in the night of 17/6/99 that would prevent the launching and that the 1st accused was in Ikoro for that assignment.

P.W.4 said that he was with the deceased when P.W.3 narrated to the deceased that the 4th accused said that the launching would not take place on 18/6/99. P.W.9 who is a cousin of the 4th accused testified that the 4th accused told him at about 10p.m. on 17/6/99 that the launching of the Road Transport Employees Association of Nigeria stated for I8/6/99 would not take place because somebody would die. Though, there is no evidence that the 4th accused was seen at the scene of crime, conspiracy can be, inferred from the evidence of P.W.3, P.W.4 and P.W.9. Those pieces of evidence are strong circumstantial evidence which are cogent, complete, compelling and point to the irresistible conclusion that the 4th accused knew of the existence of the plan and hatched the plan to murder late Chief Olajide Esan. See Ogba v. The State [1992] 2 NWLR (Pt. 222) 164; Lori v. The State [1980] 8 – 11 SC. 81; Oyediran v. The Republic [1967] NMLR 122; Ikwunne v. The State [2000] 5 WLR (Pt. 655) 550 at 560. I hold that the prosecution has proved the offence of conspiracy to murder the late Chief Olajide Esan against the 4th accused beyond reasonable doubt. However, there is no evidence that he participated in the killing of the deceased. He is found guilty of conspiracy to murder Chief Olajide Esan and I so convict him. He is not guilty of the murder of the deceased. He is discharged and acquitted on count II”

The court below in affirming the finding of the trial court said at pages 683 – 684 of the record:

“In the instant case the evidence of the P.W.3 that the 5th Appellant informed him of what would likely happen to frustrate the launching of RTEAN by Chief Esan on the 18/6/99 had been corroborated by the P.W.4. Notwithstanding the version of the P.W.9 that the Appellant told him that somebody would die; there is no doubt that the P.W.3 saw the Appellant coming out from a meeting which was held in the 1st Appellant’s house on the eve of the propose launching of the RTEAN for the 18/6/99. On the long run, the launching was frustrated and somebody who was the protagonist of that exercise, Chief Olajide Esan, was actually murdered. That is the essence of circumstantial evidence which is evidence of surrounding circumstances which undersigned coincidence is capable of proving a position with mathematical exactitude.

The Appellant has not been able to tell the court below or this court whether any other person apart from Chief Esan died in Ikoro-Ekiti in the early hours of 18/6/99 or whether any other person was to launch a rival drivers union to the N.U.R.T.W. in that community which would have been disrupted by whatever event that happened that day as predicted by the Appellant. I am of the considered view that there is sufficient circumstantial evidence to rope in the appellant on this charge of conspiracy to kill Chief Esan.

One could have commended him if he simply infiltrated the ranks of the 1st Accused and others in order to build up incriminating evidence against them in which case his information to the P.W3 which eventually got to the deceased, would have been altruistic more so as he was able to reveal this same fact to his uncle (the P.W.9) on the night of the incident at 10.00p.m.

The late Chief may have thought that the incident of 14/6/99 where the 1st Accused Appellant and his confederates disrupted the launching with thugs would have repeated itself in which case the assailants would have been contained by the police to whom he was about reporting the following morning but alas! the assailants had more sinister plans to outsmart him.

That the 5th Appellant knew and partook in the hatching of the dastardly act is amply demonstrated in his outright denial in open court that he neither saw nor passed such information to the P.W.3 on the 17th of J