Ifeanyi Chukwu V. The State (1996)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The appellant was convicted of murder in the High Court of Oyo State sitting at Ibadan. The Court of Appeal, by majority decision, upheld the conviction and sentence of death of the trial court; thus the appeal to this court.
The appellant was accused of murder of one Aliu Mohammed, a night guard in the service of Solomon Oluyemi, Akinlawon, P.W.1. In the early hours of 30th October, 1986, the P.W.1 was in bed but not asleep and he heard some noise like that of people jumping over his fence. From the adjacent house and he got up to have a look. His premises, according to P.W.1, was well lit. He went to one of the far rooms to peep and saw “two of the strange men” climbing up the flight of stairs of his house with the deceased pursuing them.
The deceased was holding a stick and the strange men who had got near the kitchen got hold of some empty bottles and attacked the deceased after breaking the bottles by hitting him on the head. The sharp edges of the broken bottles were used to hit the deceased on the head until he fell down in a pool of blood. By that time (when the deceased fell down), according to P.W.1, his wife and children had joined him in shouting for help to the other neighbours. Some of the neighbours came out and so did some of the night watchmen in the neighbourhood.
The P.W.2, Julius Oladejo Ojeshina, a tenant of P.W.1 on the ground floor said he heard some commotion outside and heard the voice of the deceased warning some people against jumping over the fence into their premises and he (P.W.2) had to peep through the sliding doors. He saw some movement leading him and his family shouting “thief! thief !” in Yoruba language. Some men, according to him passed in front of the door to the staircase leading to the first floor where P.W.1 lived; he saw the deceased running after them and later he heard the sound of breaking of glasses. The neighbours had started coming out.
He said he saw the accused (appellant) in a black pair of trousers and a white long sleeved shirt as according to him, the place was well lit that night. He “wanted to come out through the front door when ……….. saw the present accused with a crate of Coca Cola bottles which he was throwing at the front door to keep me inside.” According to this witness, this accused (appellant) ran towards the gate and after attempting to force it open and failed, he then called “Ayo, Ayo” and he and the person he called Ayo ran to the fence, the appellant thereafter helped “Ayo” to jump over the fence and the two ran away threatening to come back. They ran towards the University College Hospital Secretariat Road, Ibadan.
It was then the P.W.2 opened his door and “ran to the gate to open” it for his neighbours. He saw the deceased on the ground unconscious, bleeding from the head. Police on patrol later arrived at the scene and took the deceased to the Hospital, i.e. University College Hospital, Ibadan, where he was admitted but died between 0930 hours and 1000 hours. According to both the P.W.1 and P.W.2, the whole incident of the attack by the marauders occurred around 0130 and 0200 hours of 30th October, 1986. The two witnesses testified that they later heard there was somebody arrested and went to the police station where they saw the appellant and identified him as one of those that attacked their house the night of the incident, but that was on 31st October, 1986.
According to P.W.2 the appellant that he was able to identify at the police station was not wearing the same dress he wore when their house was attacked. The witness who said he came out to open the gate for the neighbours confessed under cross-examination that he actually never came out when confronted with the statement he made to the police about his not going out. It is instructive to quote part of the evidence of this P.W.2 in cross-examination which runs as follows:
“I made the statement now shown to me but I must have been confused when making the statement as I did not go out that night. I would not know that our neighbours and other night guards arrested the first stranger they saw the following night because the robbers threatened to come back.”
The P.W.1 saw three suspects attacking the house but he never described the persons he saw and why he definitely identified the appellant P.W.3, Jimoh Amoo’s testimony was that he saw the appellant with two men and sometime later he heard the shout of “thief! thief!” and ran to the place. He saw the accused throwing bottles at all the night watchmen around.
The second day, at night, he saw the appellant and challenged him and called the neighbouring watchmen by whistle and arrested him. He was particularly vigilant as the brigands promised to come back so that when he saw the man (appellant) on 31st October, 1986 barely twenty four hours after the attack of the previous night they had to arrest him.
The appellant volunteered to take P.W.3and the other guards to where he was coming from but they refused; the appellant kept on asking if they (the guards) would kill him. After the attack on 30th October, 1986, P.W.4 was the one that led a team of police to the P.W.1 ‘s house on the distress call and not on patrol. The attackers had left the scene where he saw broken louvre glasses on the floor.
The accused told P. W.3 he was a driver but he was obviously not believed. P.W.4, the policeman, believed the P.W.3 and the other “night watchmen” were vigilantes. However, P. W.5 testifying for the prosecution positively identified the appellant as a fellow driver and that the police brought him to his place of work around the end of October, 1986. This witness was not cross-examined as his testimony favoured the appellant.
The P.W. 7, the investigating police sergeant recovered from the appellant a “white shirt and a pair of old brown pair of trousers that he wore that night”. He also recovered from the scene of crime empty “double barreled shell” and fifteen empty bottles of small stout in a crate. He also recovered a bunch of keys from the appellant. On cross-examination, the P.W.7, a police sergeant, left to investigate a serious crime, had this to say:
“The accused told me he was a driver. I asked for his driving licence but he told me one of the night guards who arrested him had the driving licence. I did not take him to the fifth prosecution witness.
I am not the only investigating police office in this case. Sergeant Balogun is one of us.
I visited the house of the accused and there met a fat lady and an aged woman claimed to be the sister and mother of the accused respectively. The accused did not tell me he was at home when the incident in this case happened. I cannot now remember where the accused said he was going the fateful night when I asked him where he was in the night. I cannot remember now if the accused had told me he was at home with the members of his family during the night of the killing of the deceased. The sister and mother did not volunteer any statement to me as they speak Ibo and I only understand Ibo faintly. I did not ask the accused’s sister and mother to make a statement as to whereabouts of the accused. I did not take the statement of 5th prosecution witness. The Investigating Officer at the State Central Investigation Department did. I took the statement of the third prosecution witness. I speak a bit of Yoruba language. I speak Yoruba well but not fluently. I do understand Yoruba language.
I followed the accused to his wife at the University of Ibadan premises. She confirmed the story of the accused that he was coming from her shop on the night of his arrest. I tried my best to find out where the accused was in the night of 29th to 30th October before I transferred the case to the State’s Central Investigation Department. Re-Examination:- Nil.”
When the appellant’s house was searched there was nothing incriminating found therein. The police never took in writing the statement of the appellant’s’ wife, sister and mother. The appellant gave evidence in his own defence apart from making statement to the police voluntarily. He was consistent throughout. He set up alibi that he was not at the scene of crime when the crime took place. He met the vigilantes on 31st October 1986 when he was coming from his wife’s shop; the P.W.7 went to his wife’s shop but never told the court what transpired as to the alibi in his discussion with the appellant’s wife. He (P.W.7) could not even remember what she told him or what the appellant’s sister and mother told him, an incredible situation of a police officer investigating a murder case.
The appellant described his encounter with P.W.3 and another night guard or vigilante as follows:
“On my way home, I saw the 3rd prosecution witness and one other night guard sitting down. The third prosecution witness then called me and asked me where I was coming from. I told him I was coming from my wife’s shop at Agbowo where food and palm wine were being sold.
The third prosecution witness asked me my work and I told him I was a driver. He asked for something to show I was a driver.
I took out my driving licence from my back pocket and I showed my driving licence to them. He saw my picture in the driving licence. The second night guard asked to see the driving licence but the 3rd prosecution witness said:-
“Se Driving Licence la maje ni”, meaning” Is it driving licence we are going to eat” I understand Yoruba language. The other mate put my driving licence in his pocket and the 3rd prosecution witness said –
“Ologbeni lojoko nibeyen” meaning “that I should go and sit down near them.
It was the third prosecution witness who put the driving licence in his pocket and was walking away. That was why I told him and he began to blow his whistle and shout “Ole”, meaning “Thief’, ”Thief’. Many persons then came round and inspite of my plea that they should come with me to my house, they were not prepared to listen to me. The 3rd prosecution witness then hit me with a stick on the head. They were all beating me up and later tied my two hands and my two legs respectively. One of the person then brought some quantity of cement which he put in water and gave me to drink. One person also said I should be given battery water. It was at that stage the police highway patrol then arrived, rescued me and took me to the Sango Police Station.
The third prosecution witness first saw me and stopped me at about 9 p.m. When I was in the Police Station later, I made a statement to the police. I was charged with wandering as at that stage. I saw the 1st prosecution witness the following day at about 10. a.m. on 31st October, 1986. I was then in the cell in company of two others. Some of the persons that arrested me the previous night were at the police station before the 1st prosecution witness was around. Then the desk Sergeant asked who was the person arrested at Bodija, the previous day. I then stood up as I thought there was somebody to stand bail.
When I stood up in the cell the people around began to shout “On niyen” “On niyen” meaning “That is He”, That is He” The 1st prosecution witness then went away with the Sergeant.”
The appellant maintained he was at home on the night of the murder and that on 31st October, 1986, he was accosted by P.W.3 and one other person whom the police even believed to be vigilantes around 2100 hours and not 2300 hours as was suggested in the cross-examination.
The learned trial Judge, considering the evidence of P.W.2 who made conflicting statements as to whether he was present when the appellant was arrested and as to whether he opened his door to go to the gate to let in the neighbours after the attack on the deceased, found as a fact that this witness told one story to the police and another to the court. He held he would consider this witness’ testimony along with the ether evidence by the prosecution, but that it was negligible. On the alibi set up by the appellant, he held as follows:
“As regards the evidence of the 3rd prosecution witness, it has been said he had a previous opportunity to meet the accused at 11 p.m. on 29th October, before seeing him again two hours later in the premises of the 1st and 2nd prosecution witnesses. That evidence appears to be set seriously against the alibi of the accused. It is trite law that a defence of alibi cannot be lightly disregarded. See R. v. Turner (1977) WRNLR 34. If however the prosecution produces stronger evidence against it, the defence will crumble – See R. v. Chadwick (1917) 12 CR. App. R 247 referred to with approval in Yanor & Anor. v. The State (1965) NMLR 337 at 341 to 343. See also Salisu & Ors. v. the State (1974) 4 U.I.L.R.401 cited by Learned State Counsel for the prosecution. In the case of Yanor & Anor. v. The State (1965) NMLR at 324, the Supreme Court said per Idigbe J.S.C.:-
“Therefore while the onus is on the prosecution to prove the charge against an accused person, the latter has, however, the duty of bringing the evidence on which he relies for his defence of alibi; when such evidence has been adduced the court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the court is unable to reach a decision on the question whether the evidence in support of the case for the prosecution is stronger than that produced in support of the alibi, the accused must be acquitted.”
In view of the identification by the 3rd prosecution witness, it should be considered reasonable for the accused to call on his own sister, his mother and the said Iyabeji to testify on his behalf even though they have not made statements to the Police. It is to be said that in the Yanor case above, the trial court preferred the prosecution’s evidence that the accused was in the crowd that attacked the deceased and took part in the accused to the defence of alibi put forward by him. He was convicted and the Supreme Court upheld the conviction. The present accused should have, in my view, asked for witnesses summonses for his witnesses in support of the defence of alibi. See Adagba & 10 Ors v. C.OP. (1965) NMLR 475 at 478.
On identification of the appellant by P.W.1 and P.W.2, and also P.W.3, it is amazing that the unresolved contradictions in the evidence of these witnesses are believed. What the police recovered at the scene of crime was a crate of half bottles of stout, not of Coca Cola; further the bottles were not broken bottles. The police also found louvre panes, broken at the site, not Coca Cola bottles. The evidence of the appellant on oath and statements to the police has been consistent throughout. Looking at the way and manner the appellant was accosted by P.W.3 and his friend who never testified coupled with all the contradictions, material contradictions as to the weapons used, dress of the appellant, role of P.W.2 after the crime and the manner the P.W.7 testified as an investigator who forgot the most essential things as to what material witnesses not called told him – it seems he even never took their statements – one is at a loss as to how prosecution’s case could be proved.
The plea of alibi, when set up, sends the prosecution on a very important assignment. The police must investigate the alibi. Alibi as a plea pre-supposes that the accused not only claims he never committed the offence but that he was not at all at locus delectis. In an offence requiring physical presence, an alibi set up by the accused must be investigated by the prosecution. The alibi must not set the police on a prowl, like blandly saying the accused was not at the scene without details of his whereabouts at the time of the commission of the crime in question.
It must be definite as to time, place and the persons who know about the accused’s whereabouts. Yanor and Anor v. The State (1965) NMLR 337, 341, 342. Alibi is not to be treated lightly because the onus is on the prosecution to disprove it. In the present case the appellant presented the police with all they needed to investigate the alibi, to wit
- he claimed he was at home with his sister and mother;
- that one co-tenant, Iya lbeji, saw him and woke him up to switch off his radio;
- he gave his address.
P.W.7 went to the address, saw all these people – Iya lbeji and the appellant’s mother and sister but he testified that he forgot what they all told him. Certainly this witness, a police officer with criminal investigation section of the police did a bad job as it is either he never investigated the alibi or investigated it and did not like what he was told e.g. that the alibi was proved. This is fatal to the case for the prosecution as the alibi remained undisproved. Adedeji v. The State (1971) 1 All NLR 751. Thus once the accused has put forward evidence to the prosecution to investigate the alibi it is for the prosecution to investigate the alibi and disprove it. If the prosecution faced with the defence of the alibi can investigate what the accused supplied as evidence, the court may believe or disbelieve upon the other evidence proffered by the prosecution, but failure to investigate is fatal to the case for the prosecution if the accused has supplied all the necessary facts Nwosisi v. The State (1975) 6 S.C. 109; Asemakahaa v. The State (1965) NMLR 317; Gachi & Ors. v. The State (1965) NMLR 333; Yanor v. The State (supra).
Thus with all these failures of the prosecution and shortcomings in the prosecution’s case, Court of Appeal affirmed the decision of the trial court. The evidence of P.W.1 and P.W.2 are full of contradictions that it will be perverse to disregard the contradictions. The appellant was not arrested on 30th October but on 31st October 1986 by vigilantes led perhaps by P.W.3 whose evidence was full of contradictions that are irreconcilable as earlier explained. Seeing the appellant coming from Agbowo direction at night – it is immaterial whether it was at 9 p.m. or 11 p.m. – the P.W.3 stopped him aggressively in the vivid description of the appellant in his statements and evidence in court. The companion of P.W.3, who never testified, outrightly was not interested in the explanation of the appellant as to where he was coming from or whether he was a driver or not and he said:
” Se driving licence la ma je ni”
(Is it driving licence we are going to eat”).
He was there and then detained and the appellant was in real fear he might be killed or harmed as he kept asking them “are you going to kill me” This is clear in the evidence. When P. W.3 seized his driving licence, the appellant struggled with him and P.W.3 and his other vigilantes descended on him shouting “thief’ and “On niyen” in Yoruba, meaning “That is he” “That is he” (according to the Record of Proceedings at the trial court). He was beaten up and the police who came to the scene took him to their station for loitering. No identification parade was held and the whole attitude of P.W.1, P.W.2 and P.W.3 seemed to be to hold somebody responsible for the death of the deceased.
Finally, on the failure to investigate the alibi set up by the appellant and with the full particulars of his whereabouts at the time of the commission of the heinous murder undisproved, the case for the prosecution cannot stand on the evidence proferred at trial. For this reason and also for the shoddy identification by P.W.1, P.W.2 and P.W.3 on the contradictions in their individual evidence, I find great merit in this appeal and I allow it I set aside the decision of the Court of Appeal which affirmed the conviction and sentence of death passed by the trial court. In its stead enter a verdict of discharge and acquittal.
SC.10/1993
