Francis Odili v. The State (1977)

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D. A. R. ALEXANDER, C.J.N.

At the conclusion of the hearing of this appeal and without calling on learned counsel for the respondent we dismissed it and affirmed the conviction and sentence of the appellant. We now give our reasons for dismissing the appeal.

The appellant was convicted and sentenced to death by a Tribunal established pursuant to the provisions of the Robbery and Firearms (Special Provisions) Decree 1970 No. 47 of 1970 (as amended), having been found guilty of the following offences
“Statement of Offence (1st count)
Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.
Particulars of Offence
Francis Odili on or about the 26th day of October, 1973 at Aguleri in Anambra Division in company with firearms robbed Reverend Sister Mary Catherine of the sum of N140.00.

Statement of Offence (2nd count)
Robbery contrary to Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.
Particulars of Offence
Francis Odili on or about the 26th day of October 1973, at Aguleri in Anambra Division in company with other persons unknown armed with Firearms wounded Reverend Sister Mary Catherine at the time you robbed her of the sum of N140.00.

Statement of Offence (3rd count)
Robbery contrary to Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.
Particulars of Offence
Francis Odili on or about the 26th day of October, 1973 at Aguleri in Anambra Division in company with other persons unknown armed with firearms wounded Reverend Sister Joseph Mary at the time you robbed Reverend Sister Mary Catherine of the sum of N140.00.”

Although the appellant was originally charged on six counts altogether, we shall not concern ourselves with the remaining three counts, since no evidence was adduced to support them and the appellant was acquitted and discharged in respect of them.

Briefly, the facts of the case as found by the Tribunal are as follows. In the early hours of the October 26, 1973, at about 2.30 am, two Roman Catholic Reverend Sisters, namely Rev. Sister Mary Catherine and Rev. Sister Joseph Mary, who were living at the Catholic Mission Compound at Otuocha, Aguleri, heard a noise outside the window of their bedroom which they shared in common. Rev. Sister Mary Catherine saw the flash of a light of a torch from the window and heard a voice announcing the presence of armed robbers and ordering the two Sisters to open the door of their house. Rev. Sister Mary Catherine replied that the door was open. Two men then entered the room of the Rev. Sisters bringing along with them the two night guards of the premises whose hands were bound behind their backs, and whom they pushed underneath the Rev. Sisters’ beds, where they apparently remained until the robbers completed their operation.

The robbers then threatened to kill the two Rev. Sisters in the same way that one Dr. Obinwa had been killed for a large sum of money and stated that they had been paid a large sum of money to kill the Rev. Sisters, and that unless the Rev. Sisters paid a large ransom, they too would be killed like Dr.Obinwa. The robbers gave them five minutes to say their last prayers and, having done so, they raised their hands in surrender expecting to be shot. The robbers then demanded that the Rev. Sisters should pay a substantial amount to redeem their lives. The two Rev. Sisters then collected a total of N140.00 and handed this amount to the robbers who said it was not enough. They then offered the key of their car, two sewing machines and some items of clothing, which were refused.
The Rev. Sisters were then ordered by one of the robbers to lie down and he beat them up all over their bodies with a matchet inflicting several wounds on them. The other robber (the appellant) was armed with a gun and was busy searching their house for more money which he found and kept.
When Rev. Sister Mary Catherine eventually attempted to escape, the appellant, armed with a gun, followed her into the bathroom and again threatened to shoot her. The appellant then dragged her back into the room.
An alarm clock in the room went off at 4.45 am and the robbers left the room with their loot, after warning the Rev. Sisters and the night guards who were still under the Rev. Sisters’ beds, not to make any noise. The Rev. Sisters nevertheless raised an alarm, other inmates of the house came on the scene and the night guards were set free. The Rev. Sisters were taken to hospital where they were treated for the severe matchet cuts and other injuries inflicted on them. They were discharged on November 13, 1973, eighteen days later.
Following his arrest, the appellant was identified by Rev. Sister Mary Catherine at an identification parade conducted at the Police Station at Onitsha on January 30, 1974. When the appellant was identified by Rev. Sister Mary Catherine he said nothing.
The appellant denied both the knowledge of, and complicity in, the offences with which he was charged and on which he was standing trial. He testified that he was in his house with his wife Uchechukwu Odili, and small child on the night of the robbery. His wife testified that he was at home on “the night previous to the incident”.
The main ground of appeal (which included a number of subsidiary grounds) argued by learned counsel for the appellant was that the decision of the Tribunal
“is altogether unreasonable, unwarranted, and cannot be supported having regard to the evidence.”

He submitted that the alibi raised had not been disproved by the prosecution, and that the Police made no attempt to check whether the appellant “slept in his bed or not” on the night of the incident.
The Tribunal in its judgement said –

“We have no difficulty in rejecting the defence of the accused especially where it conflicts with the evidence of the prosecution’s witnesses. We also reject accused’s vague attempt to raise the defence of  alibi since the alibi lacks candour. Accused at no where in his statements Exhibits 1 and 2 mentioned his wife D.W.2. Had the accused wanted Police to investigate his purported defence of alibi, he should  have at the earliest opportunity furnished the police with the full details of the alibi especially the names of his wife and the other inmates of his house to enable the Police to check on the details. Failure of  the accused to furnish the particulars of his alibi, in our view, weakens the defence of the accused.”

The evidence in support of such an alibi was peculiarly within the knowledge of the appellant and he did call his wife as a witness. There was nothing more for the Police to investigate. Apart from the fact that her testimony did not positively support his own, the Tribunal disbelieved him. While the onus is on the prosecution to prove the charge against an accused person, the latter has the duty of bringing the evidence on which he relies for his defence of alibi. See Yanor & Anor v. The State (1965) N.M.L.R.337;
Nwosisi v. The State (1976) 6 S.c. 109. In the circumstances of the present case, the Tribunal, in our view, rightly disbelieved the appellant and rejected his defence of alibi.
Counsel for the appellant next submitted that the evidence relating to the identification of the appellant by Rev. Sister Mary Catherine at identification parade was unreliable and should not have been accepted by the Tribunal. He referred to the appellant’s own version in his statement to the Police, Exhibit 4, which reads as follows
“Today 30/1/74 we dey for line for identification parade one Rev. Sister touch me and he touch another person, and police take my photo with the Sister, me nor know Sister Na today I first know sister. Me nor know why sister touch me.”
The appellant also said in his testimony
“I was the shortest in the identification parade, and P.W.2 (Rev. Sister Mary Catherine) lastly picked me out. I was not the only person “identified – one other tall person was also identified” .

On the other hand, Rev. Sister Mary Catherine testified, under cross examination, as follows:

“I have lived in Aguleri for about one year before this incident. I saw accused for the 1st time on the date of this incident. I was frightened when they announced that they were armed robbers. The armed robbers spoke both in English and broken English. They had no masks on their faces. From our house to the maternity would be about two poles away. There were inmates at the maternity then but nobody showed up. There were also inmates in our house but they were unable to come out. The accused’s colleague was taller than accused himself. Whilst in the hospital we had visitors. We described to our visitors the people who attacked us. As soon as I saw the accused at the identification parade, I had no illusions whatsoever that he was the man I saw on the day of the incident. As for the other person I was not sure of his identity when I saw some one like him at the parade. ”
The Tribunal said in its judgement
“We accept the evidence of P.W.2 and P.W.3 particularly the evidence of P.W.2, Sister Mary Catherine, who impressed us as a witness of truth. We believe P.W.2 that she identified the accused as the  person who was with the other man now at large on the night of the incident. We have no difficulty in accepting the evidence of P.W.2 on the question of identification as P.W.2 stated and we believe her  that she spent quite some time with the accused alone on the day of incident. We do not think that there was any serious discrepancy at the identification parade as to vitiate the result of the identification.
We believe both P.W.2 and the Police that when P.W.2 identified the accused at the identification parade at Onitsha Police Station the accused said nothing then. We think that accused’s silence at that  crucial moment affords some corroboration of accused’s complicity in this revolting crime. ”

We are of the view that the Tribunal came to the right conclusion on the issue of identification of the appellant.

Counsel’s last submission was that the two night guards should have been called as witnesses as they were present throughout. They were, of course, trussed up under the Rev. Sisters’ beds at the material time.

The Tribunal, in its judgement, pointed out that the defence had an equal opportunity to call the night guards if they considered that the evidence of night guards would be favourable to them. The Tribunal found no merit in this submission and we unhesitatingly agree. The prosecution is not required to call every available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt: see Alonge v. Police (1959) 4 F.S.C.203.

In conclusion, we repeat that we are unable to find any merit in this appeal and hold that the Tribunal was right in convicting the appellant on the 1st, 2nd and 3rd counts as charged.

Other Citation: (1977) LCN/1926(SC)