Jimoh Awopejo & Ors. V. The State (2000)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

This is an appeal against the judgment of Olagunju J. (as he then was), of the Kwara State High Court sitting at Ilorin Judicial Division.

The judgment was delivered on the 30th of October, 1998.

The appellants, seven of them in number, stood trial for the offence of culpable homicide punishable with death, contrary to Section 221 of the Penal Code. At the trial, the prosecution called eleven witnesses and tendered some Exhibits. The appellants gave evidence and called altogether twelve witnesses. At the close of the defence, and after the learned counsel had submitted their written addresses, the learned trial Judge in a reserved judgment found the charge proved. The eleven appellants were accordingly sentenced to death by hanging. The appellants were dissatisfied with the judgment and, each filed a notice and ground of appeal against judgment.

The facts as found by the learned trial Judge may be summarized as follows:

There was a dispute over the succession to the vacant stool of the head of the local community, to wit, Bale of Oke Oyi. On 28/9/93 and 29/9/93 there were conflicting announcements about the appointment to the stool. The community was polarized into two factions.

The announcement of the 29/9/93 brought the supporters of a faction into the street. They sang offensive and threatening songs and paraded round the village. When they got to the house of the deceased’s father, they threw stones into the house. They ran round the compound and lit a bonfire. The stone hit a woman who was inside the house, by a name “Ibitokun”. The crowd was eventually dispersed by a heavy down pour. In the morning that is on 30/9/93 the crowd regrouped. This time they were armed with guns, cutlasses cudgel, etc. They marched to the house of the deceased. When the deceased saw the crowd, he and the wife ran inside the house. The deceased’s father also ran from his house to the deceased’s house. The three entered a room and locked themselves inside. The appellants who led the crowd broke into the room, killed the deceased and dragged the corpse outside.

Pursuant to the Rules of this Court, the learned counsel for the appellants and the respondent filed and exchanged their respective briefs of argument. The learned counsel for the appellants identified the following four issues for determination:-

“1. Whether the learned trial Judge was right to have picked and chose which of the prosecution witnesses to believe and those not to believe and in proceeding to convict the appellants upon contradictory pieces of evidence adduced by the prosecution at the trial without any explanation by the prosecution?

2. Whether the learned trial Judge was not in error to have convicted the appellants when the evidence adduced at the trial was materially at variance with the charge preferred against them and whether the approach adopted by him did not truncate the right of the appellants to even treatment with regard to the review of the respective cases of the prosecution and the defence?
3. Whether the trial court was justified in law in overruling the defence of alibi raised by the appellants and for failing to consider other possible defence(s) opens to the appellants at the trial?
4. Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of all appellants as done by the trial court for the offence of culpable homicide punishable with death”.

For the respondent, the learned Principal State Counsel also formulated four issues for determination viz:-

“1. Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of all the appellants as done by the trial court for the offence of culpable homicide punishable with death.

2. Whether the inconsistencies and or mix up in the testimonies of the prosecution witnesses are materially substantial to have occasioned a miscarriage of justice against the appellants.
3. Whether the evidence led by the prosecution at the trial of the appellant are at variance with those contained in the proof of evidence.
4. Whether the trial court was wrong to have overruled the defence of alibi raised by all the appellants.”

I find that the appellants’ issues for determination sufficiently cover all the matters in controversy in this appeal. It is my view that the said issues are good and sufficient for the consideration of this appeal.

Before us, the parties through their counsel adopted their briefs for argument.

The learned Senior Advocate of Nigeria, Yusuf Ali Esq, of counsel, cited additional authorities in support of issue 1, 3 and 4 namely:-

Abdullahi & Ors. v. The State (1995) N.W.L.R. (Part 417) 115 at 124, the unreported case of Jacob Balogun & Ors. v. The State, Suit CA/K/121/C/92 delivered on 21st January, 1994 per Okunola J.C.A.

The learned SAN referred us to pages 170-172 of the record of proceedings and submitted that the learned trial Judge accepted the prosecution’s case before considering the case for the defence. Further that the court erroneously relied on the concocted evidence of PW2 and PW4 in convicting the appellants. He urged the court to allow the appeal.

The learned Principal State Counsel Abdulmumini Esq, conceded that where a Judge considered the evidence of the prosecution and believed it before considering the evidence of the defence the Judge could not have acted judiciously. He agreed that P.W.3 who was shown as having identified the body to the doctor who performed the autopsy did not give evidence of the identification. He referred to Exhibit 10 and observed that there is no nexus between Exhibit 10 and the corpse of the deceased. He also accepted that there are discrepancies in the evidence of the prosecution witnesses but submitted that the discrepancies are not substantial enough to occasion a miscarriage of justice.

I start with issue one. Under this, the learned Senior Advocate of Nigeria reminded the court that a total of eleven witnesses testified for the prosecution. He then observed that it is not shown from the record of proceedings that there was any application from the prosecution to treat any of them as a hostile witness. The prosecution did not attempt to explain the apparent contradictions in the testimonies of those witnesses. Instead, the learned trial Judge provided justification for the contradictions in the testimonies of the witnesses. He referred, in particular, to page 171 of the record where the learned trial Judge stated thus:-

“However that, may be as regards the place where the deceased was attacked and killed I believe the evidence of the 2P.W, 3P.W. and 4P.W, and I prefer it wherever it conflicts with the evidence of the 7P.W., whose lapses on a number of other matters, as I would touch upon later, impel caution to be wary in acting on his evidence”.

At page 172 of the record the learned trial Judge went further to hold:-

“I do not regard as material the discrepancy between the evidence of the 7P.W, and 2P.W, 3P.W. and 4P.W. on how and where the body was found. I prefer the evidence of the 2P.W, 3P.W. and 4P.W, who were eye witnesses of the attack and who were earlier in time on the scene than 7P.W”.

It is the contention of the learned Senior Advocate of Nigeria that if a witness called by the prosecution contradicts another witness also called by the prosecution, it is the duty of the prosecution to lay the necessary foundation. He referred to a passage in the judgment of Fatayi Williams J.S.C. (as he then was) in the case of Onubogu & or. V. The State (1974) All NLR (Reprint) 561 at 571; and also to the cases of Ibeh v. The State (1997) 1 NWLR (Pt.484) 632 Aruna v. The State (1998) 1 ACLR 369 at 378-379.

The learned Senior Advocate of Nigeria further submitted that the place where the deceased was killed and the circumstances surrounding his death which are the testimonies 7P.W. touched upon the very material points for the determination of the guilt or otherwise of the appellants. He referred also to a further contradiction in the testimonies of the 2nd P.W and 7 P.W. on the nature of the weapon used by the appellants which resulted in the death of the deceased. Finally, he referred to the testimonies of 2 P.W. and 4 P.W. on the one hand and Exhibit 10. The post mortem report issued after the post examination of the body of the deceased by the doctor. In his view, the prosecution case is riddled with contradictions both inter and alia, that a court of trial will not convict on it. And if the court convicts, an appellate court will interfere by setting aside the convictions. He relied on- Ikemson v. The State (1988) 1 ACLR 80 at 90 (1989) 3 NWLR (Pt. 110) P. 455 Onubogu v. The State supra at 571.

He urged the court to hold that, the contradictions are material and weighty enough to affect the conviction of the appellants.

In his reply, the Principal State Counsel, Abdulmumini Esq, submitted that the inconsistencies and or mix up in the testimonies of the prosecution witnesses are not substantially material to have titled the scale in favour of the appellants. He further contended that for any conflict, contradiction, or mix up, in the evidence of the prosecution witnesses to be fatal to a case, the conflict or mix up must be substantial and fundamental to the issues in question before the court. He referred to the cases of- Namsoh v. The State (1993) 6 SCNJ 55 at 68 (1993) 5 NWLR (Pt.292) 129.

Azu v. The State (1993) (Part 1) 7 SCNJ 151; (1993) 6 NWLR (Pt.299) 303.

Sele .v The State (1993) 1 SCNJ 15, 22-23; (1993) 1 NWLR (Pt.269) 276.

It is the learned counsel’s view that the evidence of 2P.W, 3P.W. and 4P.W. on how and where the deceased was killed and where the body was found were eye witness accounts of the murder of the deceased. The learned counsel then reminded the court that the evidence of 7P.W. related to what happened after the murder and it did not therefore contradict the other evidence. He urged the court not to accept the submission of the learned Senior Advocate of Nigeria.

It does seem necessary in order to determine the points rose in the submission of the learned counsel to refer to the testimony of 7P.W. It reads in part as follows:-

“7P.W. speaks English, Christian, S/Holy Bible.

I am Solomon Gbademi, a member of the N.P.F.

O/C Anti Robbery Patrol Term, Ajase Ipo. DSP.

On 30/9/93 I was the O/C in charge of the SIIB (now C.I.D.) Ilorin Police State Headquarters. I know all the accused.

On the day while I was in the office I received information that a young man was killed at Oke Oyi and that homicide section should investigate the case. On the same day, I led a team of five investigations viz….

Examination I led the team of police investigators. By scene of crime I mean where they body of the deceased was found. In my opinion the deceased was killed at the spot we found the body …” The provisions of the Evidence Act 1990 are clear and unambiguous as to the opinions of third persons on an issue. It is clear from the provision that opinion evidence is relevant only if it is given by an expert on the matter in issue. From the records, 7P.W. is a DSP in the Nigeria Police Force. He headed the team that investigated the murder of the deceased. Also from the record, he has no other qualification. In this light, can his opinion as to where the deceased was killed or on related matters be relevant? The answer is a capital No. It is trite that a court is expected in all proceedings before it to admit and act only on evidence which is admissible in law, and so if a court should inadvertently admit inadmissible evidence it has a duty generally, not to act upon it, Abolade Agboola Alade v. Salawu Jagun Olukade (1976) 10 NSCC, p. 34.

The learned Senior Advocate of Nigeria in his submission referred us to a passage in the judgment of Fatayi-Williams JSC (as he then was) in the case of Olubogu & Or v. The State supra. The passage reads:-

“We are also of the view that when one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness. It is not competent for the prosecution which called them to pick and choose between them. They, cannot, without showing clearly that one is a hostile witness, discredit one and accredit the other.

We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation”.

In the present case, for the reason I have given earlier the only evidence before the lower court on how or where the deceased was killed is the evidence of 2 P.W., 3 P.W. and 4 P.W… The testimony of 7P.W. on the matter is irrelevant and consequently cannot be considered. It follows that the question of crediting or accrediting the evidence does not arise. But there is another side to this matter. It is implicit from the passage of the testimony of P.W.7 quoted above that his evidence related to what happened after the death of the deceased. On the other hand the evidence of the other prosecution witnesses in respect of what happened to the deceased before his death. Their evidence is not on the same point and consequently can not be inconsistent of each other.

The answer to issue one is that the question does not arise. On issue 2 the learned Senior Advocate of Nigeria referred to the date on the charge on which the appellants were arraigned and on which also the plea of the appellants was taken. He observed that the evidence adduced at the trial by the prosecution was at variance with the charge proffered against the appellants in respect of:-

1. The date when the deceased died.
2. The place where the body was found.
3. The type of weapons used in inflicting the mortal injuries.

He referred to the remark by the learned trial Judge that none of the appellants was misled by the error and that the error has not occasioned a miscarriage of justice. It is the learned Senior Advocate of Nigeria’s view that the learned trial Judge took a simplistic view of the variation between the charge and the evidence led by the prosecution. The learned SAN contended that if the deceased was killed at a place other than in his house as deposed to by some prosecution witnesses and if the weapon used are not in agreement with those stated by the 2P.W and 4P.W., and “the possibility of the deceased’s death being attributed to the mob as stated in the evidence becomes a possibility” hence casting doubt on the criminal responsibility of the appellants for the death of the deceased.

The learned SAN observed that the whole essence of a charge is to give an accused due and proper notice of the case he is to meet at the trial with precision in order to enable him prepare to meet it. He relied on Aruna v. The State (1990) 6 NWLR (Part 135) 125 at 136. The learned SAN further submitted that there is a variation between the case set out in the charge and the evidence adduced by the prosecution at the trial. In his view therefore the appellants cannot be said to be afforded a fair hearing as provided for in section 33(6) of the 1979 Constitution of the Federal Republic of Nigeria. He cited the following cases – Salawu v. Adza (1997) 1 NWLR (Pt.527) 14 at 21 – 22; Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333.

Under this heading also the learned SAN submitted that the appellants and the prosecution were not evenly treated by the trial court. He gave as an example where the learned trial Judge in the judgment dissipated, according to him, a lot of energy explaining the circumstances surrounding contradictions in the testimonies of the prosecution witnesses 7 and 8 on one hand and P.Ws. 2, 3, 4 and 5 on the other hand. He also referred to the effort at clarifying the contradiction in the testimonies of the 2, 3 & 5 P.Ws. The learned SAN claimed that on the converse the learned trial Judge beamed a probing search light on the testimonies of the appellants and their witnesses and thereby disbelieving their defence of alibi. He referred to the cases of Ibrahim v. The State (1995) 3 NWLR (Part 381) 35 at 48: Odubeko v. Fowler (1993) 7 NWLR (Part 308) 637,

In his reply, the learned Principal State Counsel, Abdulmumini Esq, submitted that the evidence led by the prosecution at the trial of the appellants were not at variance with those contained in the proofs of evidence. He contended that, the learned Counsel for the appellants grossly misrepresented facts that there are inconsistencies in the evidence of the prosecution witnesses as to the place the deceased was murdered and nature of weapon used on him. As regards the date of the death of the deceased the learned counsel submitted that the deceased died on 30/9/93. He submitted that the phrase “On or about 29 day of September, 1993, as contained in the charge sufficiently represents the date the deceased was murdered. He reflected to Black’s Law Dictionary 5th Edition which defines “On or about” to mean inter alia “without substantial variance from”. Finally, he submitted that the date in the charge has not occasioned a miscarriage of justice.

Referring to the place where the deceased died, the learned counsel submitted that the testimonies of the prosecution witnesses were not at variance with one another on the point. He submitted further that there is no contradiction in the testimonies of the prosecution witnesses on the nature of weapons used. In his view the evidence led by the prosecution on the nature of the weapon used tallied with the description in Exhibit 10.

On the allegation that the trial court did not treat the testimonies of the prosecution and defence evenly, the learned counsel submitted that what is required of a court in arriving at its judgment in a criminal case before it is to consider all the evidence before it in deciding the guilt or otherwise of the accused persons. He observed that the law does not impose any style or mode of writing judgment on a Judge. He referred to the case of Adamu v. The State (1991) 6 SCNJ 33 at 40 (1991) 4 NWLR (Pt. 187) 530. He urged the court to uphold the judgment.

It is common ground that the charge on which the appellants were arraigned alleges that “on or about the 29th day of September, 1993, the appellants caused the death of one Alhaji Issa…”

It is suggested that because of the evidence of the Criminal Procedure (Application) for leave to prefer a charge in the High Court Rules 1970 were not complied with, One may ask what does the phrase “On or about 29th September, 1993” in the charge means? Does it mean that the offence was committed precisely on 29th day of September, 1993? I do not think so. This is because the word “or” when used in a sentence introduces an alternative and it is some times used to express uncertainty about a thing. On the other hand, the word “about” means a little more or less than”, “a little before or after”. See Oxford Advanced Learners Dictionary. It is because of this that when the phrase ‘On or about’ is used in a charge it is not necessary to prove the precise date the alleged offence was committed. See Rex v. Eronini 14 WACA 366. There is therefore no breach of the mandatory provision of any law; consequently the case of Salawu v. Adza supra relied upon by the learned Senior Advocate of Nigeria is not relevant.

Also, the averment in the charge is that the deceased was murdered “at a bush near Alhaji Atanka’s compound. Oke Oyi in Ilorin East Local Government Area, Kwara State”.

The evidence adduced by the prosecution and which was believed by the learned trial Judge is that the deceased was murdered in his house and dragged out some poles beyond the house. Can it be seriously argued that this minor discrepancy in the evidence and in the charge is enough to warrant the reversal of the judgment? I do not think so. This is more so as the appellants were in no way prejudiced. I agree with the learned trial Judge that:-“In view of my findings on the two issues I do not consider the mis-description in the charge of the place where the deceased was killed and the instruments used in killing to be fatal to the prosecution”.

I will discuss the issue of the weapon used in killing the deceased when I treat Exhibit 10.

The next question is whether the learned trial Judge evenly treated the evidence of the appellants and the prosecution. To answer the question one has to look carefully at the written addresses submitted by the learned counsel for the parties before the trial Judge. The defence counsel in his written address identified a number of contradictions and inconsistencies in the evidence of the prosecution witnesses. Quite rightly in my view, the learned trial Judge in his judgment considered the alleged contradictions and inconsistencies in the evidence of the prosecution witnesses. It is therefore not a case of the learned trial Judge trying to justly the prosecution’s case. If the learned trial Judge tried to anything, it is to make sure that he dealt with all the points that arose from the written address of the appellant’s counsel. I take one example P.W.4 in her evidence in chief stated:-“shortly afterwards, I saw my father-in-law, the 2P.W. running towards our house. He was being pursued by members of the crowd led by the seven accused, he ran inside the house and we locked the door of the house to keep the crowd out of (coming to) the house. My late husband, his father and I were the people who ran into the house. We bolted the door”.

In answer to a question put to her in cross-examination the witness replied:-

“I am not in a position to know what happened in the house of the 2nd P.W. that morning 30/9/93 and whether Isa Gidado was in that house or not but unmistaken it was Isa Gidado who was leading the squad of the attackers”.

The learned counsel for the defence stated in his written address thus:-

“I submitted that the P.W 4 was quite inconsistent in her testimony when in her evidence-in-chief she testified that the mob led by the seven accused persons emerged and she saw them running after her in-law i.e. P.W. 2 ‘who ran into our house and locked the door, while in her evidence under cross-examination she testified’ I knew nothing about what was happening in the compound of the P.W.2. I was not living there.”

The trial Judge in dealing with the above point stated in his judgment as follows:-

“Seeing from the house of the deceased the P.W.2 who was being pursued by the accused person to the house of the deceased in her examination-in-chief does not conflict with her testimony under cross examination that, she knew nothing about what was happening in the 2 P.W. ‘house that morning’.

I do not see the uneven treatment of the evidence of the appellant’s vis-a-vis the prosecution in the above. The foregoing is the right conclusion to be reached from the evidence. I answer issue 2 in the negative.

On issue 3, the learned SAN referred to the defence of alibi raised by the appellants which was overruled by the learned trial Judge.

It is the learned SAN’s view that the learned trial Judge was in error to have overruled the defence of alibi. He then referred to the alibi of:-

(1) 1st appellant. He observed that in the statements of the 1st appellant, Exhibits 5, 5A, 16 & 16A he raised the defence of alibi.

1. In his testimony in court, he also raised it. It is his view that his evidence in court agreed with his statements in Exhibits 5, 5A & 16A. The learned counsel then referred to the reason given by the lower court in refusing the defence of alibi and submitted that the trial Judge was in error to have not accepted the defence. This is because, the learned SAN contended, the appellant furnished the information as to his where about to the police at the earliest opportunity. He observed that the police officers who arrested the appellant did not offer any evidence to dislodge the testimonies of both the appellant and his witness on the matter.

It is his contention that the burden of proof on an accused person who raises the defence of an alibi is not that of proof beyond reasonable doubt. He cited the cases of Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 1 and also Tijani v. Commissioner of Police (1994) 3 NWLR (Part 335) 692 at 700. He urged the court to interfere with the decision of the lower court which according to him does not accord with the facts. He cited the cases of Nwokoro v. Nwosu (1994) 4 NWLR (Pt 337) 172 and Agboke v. Igbira (1997) 9 NWLR (Pt.519) 40.

(2) The 2nd appellant. It is the learned Senior Advocate of Nigeria’s contention that the appellant raised the defence of alibi immediately after his arrest. In this regard, he referred to Exhibit 6. He reminded the court that this defence of alibi was confirmed by the 6 and 7 defence witnesses.

The learned counsel submitted that, the defence of alibi was wrongly rejected by the learned trial court. He observed that the police did not investigate the defence, especially the aspect that the 2nd appellant reported to the police at Oke-Oye concerning the attempted violence on his person.

(3) The 3rd appellant. The learned Senior Advocate of Nigeria observed that the 3rd appellant raised the defence of alibi when he was confronted with the allegation of taking part in the killing of the deceased. He further reminded the court that two witnesses 9 D.W. & 10 D.W. corroborated the appellant’s claim that he was sick on the day of the incident.

(4) The 4th appellant. The learned Senior Advocate of Nigeria referred to Exhibits 13 and 44, the statements of the appellant to the police wherein the appellant claimed that he was at Offa on the day of the incident and did not return until later in the day. It is the learned Senior Advocate of Nigeria’s view that the crucial thing is whether the 4th appellant was in Offa on the date and at the time of the incident which led to the death of the deceased? It is further his view that the lower court should not have relied on discrepancies in the evidence as to the appellant’s examination/registration numbers to reject the defence of alibi.

(5) The 5th appellant. The learned Senior Advocate of Nigeria referred to the evidence of one Babayemi Aiyeduma – a witness called by the appellant. He contended that the evidence corroborated the appellant’s evidence as to where the appellant was at the time of the murder. In his view the appellant discharged the burden on him. He relied on the case of IBINA v. The State (1989) 5 NWLR (Part 420) 238.

(6) The 6 & 7 appellants. He contended that the appellants gave the police sufficient particulars of their where about on the date and time of the murder. In his view the learned trial Judge did not apply the correct standard of proof in arriving at the decision not to accept the defence of alibi. He cited the case of Sanusi v. Ameyogun (1992) 4 NWLR (Part 237) 527 at 557.

Finally under this heading, the learned Senior Advocate of Nigeria contended that the learned trial Judge should have considered all possible defence availing to the appellants after he held that their respective defences of alibi was not proved. He referred in this regard to the observation of the learned trial Judge that:-

“I noted earlier, a successful plea of alibi is a complete answer to the charge. But the draw back of the plea is that, it forecloses other types of legal defences. It is like putting all ones eggs in one basket…”

It is his contention that because of the above, the learned trial Judge did not bother to consider other possible defences which were open to the appellants. He contended that a court should not only consider all the defences raised in the evidence of an accused person but also such other defences that may arise out of such defence raised in the evidence of an accused person but also such other defences that may arise out of such defene. He cited the cases of – Akpabio v the State (1994) 7 NWLR (Part 369) at 671. Gabriel v. The State (1989) 5 NWLR (Pt. 12) 457.

He urged the court to hold that the failure by the lower court to consider other possible defences that were open to the appellants have occasioned a great miscarriage of justice on them.

In his reply, the learned Principal State Counsel Abdulmumini Esq. submitted that the learned trial Judge was justified in overruling the defence of alibi raised by the appellants. He observed that the risky nature of the defence was brought out by the Supreme Court in the case of Ibrahim v. The State (1991) 5 SCNJ 129 at 135; (1991) 4 NWLR (Pt. 186) 399 at 415 when it stated:-

“Whoever puts up the defence of alibi is indeed taking on himself a great risk because that seems to be the only defence that he can avail himself of”.

The learned counsel accepted the fact that the prosecution has a duty to investigate a defence of alibi raised by each appellant. It is his contention that the prosecution adduced evidence to disprove the particulars of alibi supplied by all the appellants. Finally, he touched on the defence of each appellant and submitted that the prosecution disproved the alibi. He urged the court to uphold the decision of the lower court.

The word “alibi” means “elsewhere”. Under section 142 of the Evidence Act, 1990, it is provided that

“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”.

It is because of this provision that our courts have held that since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than where the prosecution says he was at any material time, what has been described as “evidential burden” that is the burden of adducing or eliciting some evidence tending to show this, rests on him Gachi v. The State (1965) NMLR 333.

It has been established that an accused person can discharge the said evidential burden incumbent on him by giving sufficient particulars of that other place where he was at the time the crime was committed and of persons who can testify to his being there. Once he gives the sufficient particulars it is the duty of the police to investigate the alibi and the prosecution to disprove the alibi at the trial. See Kenneth Ogoala v. The State (1991) 35 SCNJ p. 61 (1991) 2 NWLR (Pt. 175) 509.

It is in this light that I now consider the submissions of the learned counsel on the defence of alibi put forward by each appellant.

I start with the first appellant. He made two statements exhibits 5 & 5a and 16 & 16A. The relevant part of his first statement Exhibit 16A reads:-

“Then on 30/9/93 being OKE OYI market day, my boys have left for market very early and at about 07.10 hours – 08.00hrs, another fight broke out in the town, and already my boys were in the market and I was so worried about them, but there was nothing I can do than to remain inside my house for my dear life. At about 09.00 hours when I observed that the situation was getting calm. I made up my mind to check my boys. I left my house for outside. I saw some police men on patrol and I was arrested by them…”

One may ask what is the police expected to investigate in the above? He did not mention the names of the boys he sent to the market. He did not say that he was with any body in his house. It is trite that the police are not expected to go on a wild goose chase in order to investigate an alibi put forward by an accused person. It is my view that from the above, the 1st appellant did not discharge the evidential burden that is imposed on him.

2. The 2nd appellant. He made Exhibit 6. The relevant part reads:-

“…On the following day by 0.500 hrs. I carried all my equipment together with my younger brothers who were living with me to one town called Odun Ade Village near Oke Oyi. I came back from Odun Ade yesterday evening 8/10/93. I was not at home during the riot. Yesterday evening when I came back home I was informed that Police men from S.I.I.B. Ilorin were looking for me”.

It is necessary to observe that the appellant did not mention the names of the two brothers that went with him to Odun Ade village. He did not also mention that he was with any body at Odun Ade Village.

It is the contention of the learned Senior Advocate of Nigeria that, the police should have investigated the appellant’s story that he went to the police post at Oke Oyi on 29/9/93 to make a report of an incident between him and the 2P.W. I observe that the appellant did not give the name of the police officer that interviewed him on that day. To make matters worse the appellant said that his report was not recorded. It is evident that he did not give the police sufficient particulars. In any case what was relevant was his movement on 30/9/93,

3. The 3rd appellant. He made Exhibit 17 A & 17. The relevant portion reads-

”It was getting to nineteen day, I was in the house on sick bed. I was affected by yellow fever. On the 28/9/93 at about 19.30 hrs, there was an announcement that Mr, Joshua Alao was appointed as Oluwo of Oke-Oyi … Then the following day being 29/9/93 in the evening another announcement was made … Following day being 30/9/93 I was told that heavy fighting occurred in the town between Isa Akano and Joshua Alao supporters that led to the death of one Isa Atanda …”

The two witnesses who gave evidence on his behalf were not mentioned in Exhibit 17A. The learned trial Judge did not believe them. I refer to the evidence of one of them 9 D.W. She is a nurse. It is her evidence that the appellant was treated at Omolabe Clinic for “severe malaria” at about 8.15a.m on 30/9/93. She did not tender the appellant’s registration card or any document to show that the appellant was in the Clinic on 30/9/93. According to the witness at about 8.30a.m.

“I certified the accused fit before I discharged him”.

The learned trial Judge was faced with the evidence of 2nd, 3rd, & 4th P.W’s who gave eye witness accounts of the part played by the appellant in the death of the deceased on one hand and the above evidence on the other hand. The learned trial Judge preferred the evidence of the 2nd, 3rd & 4th P.Ws. I do not see any reason why the decision should be disturbed.

4. The 4th appellant. He made two statements Exhibits 13 and 14, the relevant parts of his statements are:-

(a) In Exhibit 13:-

“….. I did not observe any unusual thing happening until 30/9/93 at about 08:00 hrs when I finally left for Offa for registration of my National Examination. In any case I was not around when crises ensued between the supporters of Chief Alao and ‘Mallam Isa Akano…”

(b) in Exhibit 14:

“…..In clearing some of the points in my former statement, I wish to state that on 30/9/93 which I left Oke Oyi for Offa. I did the registration of my exams that very day and returned to Oke Oyi. I left Offa that day for Oke Oyi around 2.30p.m and before reaching Oke Oyi it was around 4.30p.m”.

In the course of investigation the police went to the school and obtained a statement from the Tutor in charge of the school. The statement Exhibit 18 reads in part as follows:-

“Re: Usman Ajani;

The bearer is one of my students in the department. The whole classes were sent home to collect their National Examination Fee between 1-7 September, 1993. They all registered on 21st September, 1993 including him and he was confirmed to be in school by that 30/9/93…”

In his evidence in court as D.W.12, he said that the appellant registered on 30/9/93 and was around the school between 8a.m and 2.30p.m. The learned trial Judge did not believe his evidence in court. Here again the decision of the learned trial Judge cannot be disturbed. See Stephen Okafor v. The State (1990) 1 NWLR (Part 128) p. 614 on the attitude of the courts on evidence of a witness being inconsistent with his previous statement.

5. The 5th appellant. He made Exhibit 7. In it he stated in part as follows:-

“…that I left Oke-Oyi on the 15/6/93 to Lagos where I went to search for work with the help of my sister’s husband by name Baba Yemi who resides at Somolu in Lagos State. And when I got there, I started managing with him by moulding iron pot, though I was living with my sister throughout my stay in Lagos State. I was in Lagos since then, not until when my father’s wife died last year December, that is what made me to come home to sympathise with the family. I returned to Oke Oyi from Lagos on the 30/1/94″.

In his statement in court he said that he did not know whether the address of where he allegedly stayed in Lagos is No. 1 Johnson Street, Somolu, the learned trial Judge after considering his evidence and the evidence of his witness and the surrounding circumstance disbelieved him.

Finally, I observe that the appellant did not furnish the police in Exhibit 7 the address of the place where he allegedly was during the relevant period. It is my view that the trial Judge was right in disbelieving the appellant in view of more convincing evidence of the 2nd, 3rd, & 4th P.Ws.

6. The 6th and 7th appellants. The 6th appellant in his statement exhibit 15A said that he was not at home on the 29/9/93 which was a market day at Oke Oyi. I think the appellant meant 30/9/93 which was the market day. It is his story that he, his father and two younger brothers went to work in their father’s farm in a village called Jolasun. According to him his mother Adama & another woman by name Iyabo can testify to that.

The 7th appellant in his statement Exhibit 12 stated thus:-

… Since then I did not accompany my papa to farm until 30/9/93 at about 07 hours when I, Fatai & other children followed Tunde Sunday to his farm which situates at Jolasun area Oke Oyi where we all assisted Tunde Sunday in weeding his farm. We were in the farm till 3p.m when we all stopped farming. We also came back to Oke Oyi about 3.30p.m…three days later after the said fighting some police men came to our house and arrested my senior brother Fatai Sunday. Then today 26/10/93 I was home when I saw police men who came and arrested me …”

It is significant that, none of the appellants mentioned that they saw any body while they were working in the farm at Jolasun. It is also their story that they came back to Oke-Oyi in the evening of that day by 3.30p.m. Their witness 17 D.W. in his evidence on oath said that he saw only the two appellants in the farm on that day. Further that because of the disturbance at Oke Oyi the two appellants slept in his house. I observe that 18 D.W. & 19 D. W., their father and brother respectively gave identical evidence. The Judge did not accept the evidence of the appellants and their witnesses.

It is important to mention that the police in their evidence in court claimed that they investigated the alibi put forward by the appellants.

It was not suggested to the police in the course of the evidence that they did not investigate the alibi. It is my view that the defence counsel should have put pertinent questions to the police on the aspect of the alibi that were not investigated. After all, the object of cross-examination is two fold:-

(1) To weaken, qualify or destroy the case of the prosecution; and

(2) To establish the accused’s case through the opponents witnesses. Victor Ojiako v. The State (1991) 2 NWLR (Part 175) p.578. The opportunity was lost in the court below. It cannot be resuscitated in this court.

In this court the learned Senior Advocate of Nigeria relied heavily on the testimonies of the witnesses called by the appellants. He failed to appreciate the fact that what mattered most was the statement of the appellants at the time they were arrested. Did the appellant give the police particulars of the place he was at the time of the commission of the offence? In my considered view, the learned trial Judge took that into account and consequently disbelieved the evidence of the witnesses called by the appellants.

The learned Senior Advocate of Nigeria contended that having rejected the defence of alibi of the appellants the learned Judge should have considered other possible defences which were open to the appellants. Here again, I do not think the learned Senior Advocate of Nigeria appreciated the peculiar facts of this case.

The general rule is that it is never against an accused person that he has set up conflicting defences. If he does, the trial Judge is in duty bound to consider each defence on its merit as the law does not place an accused person in a fatal dilemma. The present case is however different. The appellants denied that they were at the place of the murder. The prosecution on the other hand said they were. It proceeded to give evidence of the cold blooded murder. In the light of this, what possible evidence would the trial Judge have considered? I do not see any. It is because of this situation that the learned trial Judge rightly observed thus, in my view:-

“‘I noted earlier, a successful plea of alibi is a complete answer to the charge. But the draw back of the plea is that it forecloses other types of legal defences. It is like putting all ones’ eggs in one basket.”

I answer issue 3 in the positive.

Issue 4:

It is the submission of the learned Senior Advocate of Nigeria that the prosecution did not prove its case beyond reasonable doubt as required by law. To buttress the point, the learned Senior Advocate of Nigeria referred to the contradictions in the evidence adduced by the prosecution in support of its case against the appellants. It is the submission of the learned Senior Advocate of Nigeria that the mandatory provision of subrule 3(2) B. of the Criminal Procedure (Application For Leave To Prefer A Charge in the High Court) Rules 1970 was not complied with. In support of this the learned counsel referred to the following passages in the judgment appealed against:-

“Let the note in parenthesis that for reasons which I cannot fathom out the prosecution have chosen to abridge the provisions of the above Rules by the omission from their application filed on 21/6/96 for commencement of this trial the undertaking mandated by sub rule 3(2) (b) thereof as in the above extract. This is worrying circumvention that may presage trick legal fireworks which, if ignited can boomerang. I say nothing more”.

It is the view of the learned Senior Advocate of Nigeria that the non compliance is fatal to the prosecution’s case as the guilt of the appellants could not be said to have been proved beyond reasonable doubt.

Finally, the learned Senior Advocate of Nigeria contended that the learned trial Judge picked and chose from evidence of the prosecution witnesses. He further submitted that the finding of the trial Judge that the case was badly investigated should have weighed on his mind to return a verdict of acquittal.

In his reply the learned Principal State Counsel submitted that the prosecution proved its case beyond reasonable doubt to justify the sentence and conviction of all the appellants. It is his contention that all the ingredients in the offence of culpable homicide were proved. In his view, the provision of sub rule 3(2) (b) of the Criminal Procedure (Application to prefer a charge in the High Court Rules 1970 is deemed satisfied when the trial Judge granted leave to the prosecution to commence the trial. He urged the court to uphold the conviction and sentence.

Under this heading, I intend to deal with other subsidiary issues raised by the learned Senior Advocate of Nigeria in his opening address and in his brief of argument. The subsidiary issues are

(1) Failure of P.W3 to give evidence that he identified the corpse of the deceased to the doctor that performed the autopsy, and its effect on Exhibit 10.

(2) The learned trial Judge’s acceptance of the prosecution’s evidence before considering the evidence of the defence.

(3) The nature of the weapons used in murdering the deceased. Exhibit 10 is a medical report which was issued by the doctor that performed the autopsy on the body of the deceased. The doctor did not give evidence in the court below. He is dead, P.W.3 who was stated in the report to have identified the corpse to the doctor did not give evidence in the court below. He is dead. P.W.3 who was stated in the report to have identified the corpse to the doctor did not give evidence of the identification. There is therefore no nexus between the corpse of the deceased and Exhibit 10.

It is to be appreciated however that the real purpose of identification of a corpse is to ensure that there is no miscarriage of justice. The identification is therefore necessary in order to avoid a situation where an accused may be convicted for the murder of a person who is alive. It has to be remembered that both parties agreed that Alhaji Issa Atanda is dead. Exhibits 8, 8A 6, 9 9A the negatives and prints of the photographs of the deceased body confirm this. It is in evidence that he died on the spot after he was attacked. It seems to me therefore that in the light of the evidence which the learned trial Judge believed even if Exhibit 10 is expunged it is not fatal to the prosecution’s case. This is because the evidence of the prosecution from which the court decided the cause of death of the deceased showed unequivocally the nexus between the death of the deceased and the unlawful acts of the appellants.

The learned Senior Advocate of Nigeria submitted that if the weapons used in murdering the deceased as stated in the charge are not in agreement with those described in the evidence of 2 P.W and 4P.W then the possibility of the deceased’s death being attributed to the mob as stated in evidence becomes doubtful thus casting doubt on the criminal responsibility of the appellants for the death of the deceased.

The evidence of P.W.2 is that the deceased was struck with a pestle, iron rod, stick and matchet. The 4th P.W confirmed the weapon used but added that the deceased was hit with “a half broken pestle”.

It is my view that the above weapons can cause the injuries stated in Exhibit 10. I have earlier in this judgment commented on the evidence of 2P.W, 3P.W. & 4P.W on one hand and the evidence of 7 P.W on the other hand as regards the place where the deceased was attacked and killed. The learned trial Judge considered the conflict in the evidence and believed the evidence of the 2P.W, 3P.W & 4P.W before considering the evidence of the appellants and their witnesses. I agree with the submission of the learned Senior Advocate of Nigeria that the trial Judge was in error in adopting that procedure. However, as I have observed earlier 7P.W’s opinion on where the deceased was attacked and murdered is inadmissible and consequently it is no evidence on which a court may act upon. In that light no injury was done to the appellants.

Finally, the learned Senior Advocate of Nigeria contended that as the provision of sub rule: 1(2) of The Criminal Procedure (Application For Leave To Prefer A Charge In the High Court) Rules 1970 was not complied with before the trial, the conviction and sentence of the appellants can not be said to be proper and it is fatal to the prosecution’s case. This is because, according to the learned counsel the guilt of the appellants could not have been said to have been proved beyond reasonable doubt.

It does seem to me that it is too late for the appellants to raise this point. From the record, the appellants were not prejudiced in the trial by the abridgement of the provision by the prosecution in the charge. From the record also the trial Judge applied his mind to the omission of some part of the provision in the charge and gave adequate consideration to the evidence of the prosecution and the defence.

Having made the above points, it is to be noted that proof beyond reasonable doubts stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of doubt that the person accused is guilty of the offence charged.

I accept the submission that there are discrepancies in the evidence of the prosecution. In my view the discrepancies are strong evidence that the prosecution’s cases against the appellants are not concocted.

I answer issue 4 in the positive.

I hold that there is no merit in this appeal. I hereby dismiss it and affirm the conviction and sentence of death on each appellant by the court below. The appeal is dismissed.

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Other Citations: (2000)LCN/0664(CA)