Kabir Almu V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The appellant was arraigned before the Robbery and Firearms Tribunal of Katsina State on a one count charge dated the 13th July, 1998 which alleged that the appellant on or about the 2nd day of August 1997 at Gambarawa Quarters Katsina robbed one Abdulkabir Lawal of the sum of =N=55,700.00 (Fifty-five thousand, seven hundred Naira) and that at the time of the robbery, the appellant was armed with a knife with which he stabbed the victim (Abdulkadir Lawal) causing him severe injuries leading to his death contrary to section l(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 5 Cap 398 Laws of the Federation of Nigeria 1990. He pleaded not guilty to the charge. 11 witnesses testified for the prosecution. The appellant gave evidence in his own defence and called no witness. Learned counsel for both the prosecution and the defence addressed the Tribunal and in a reserved judgment, the learned trial Judge found the appellant guilty as charged and sentenced him to death.

The appellant’s appeal to the Court of Appeal was dismissed. He has now further appealed to this court upon 8 grounds of appeal. In his Brief of argument filed pursuant to the Rules of this court, he set out the following issues as calling for determination in this appeal to wit:

“(i) Whether the identification parade of the Appellant was done in accordance with the Law.

(ii) Whether the appellant properly set up a defence of alibi.

(iii) Whether the prosecution proved its case beyond reasonable doubt.”

For its part, the respondent adopted the three issues formulated by the appellant.

Briefly, the facts of the case as found by the Tribunal are as follows. In the early hours of 2 August, 1997 at Gambarawa Quarters Katsina two men entered the room of one Abdulkabir Lawal where he lived with his wife Rukayya Abdul-kabir. The two men woke up Abdulkabi Lawal and started beating him. The men stabbed him with a knife. They demanded money from Abdulkabir Lawal. He gave it to them and they left. The victim cried for help. Some people came, took him to hospital where he died on the 4th day of August, 1997. The victim’s wife Rukayya who was also in the house was an eye-witness to all that happened on that fateful night. She revealed that the appellant was one of the two persons who attacked her husband. I shall return to her evidence later in this judgment.

Following the arrest of the appellant, he denied knowledge of the offence with which he was arrested. He pleaded alibi. In his statement to the police, and in his testimony at the trial he said on the fateful night, he slept in the house of his friend called Ali in Gabarau Quarters.

As I have already indicated, the prosecution called 11 witnesses. The vital witnesses were however PW 7 Rukayya, wife of the deceased, PW8 Abdulrasheed the appellant’s friend at whose house he said he spent the night in question and PW10 Amina Abdu who lived in the same house with PW8.

I think the most important issue for determination is the plea of alibi raised by the appellant. The appellant raised the defence of alibi at the earliest opportunity in his extra-judicial statement to the police. Both parties are agreed on this. The law is now settled in this connection. Once an alibi has been raised, the burden is on the prosecution to investigate and rebut such evidence in order to prove its case beyond reasonable doubt: See Bozin v. The State (1985) ANLR 199.

The defence of alibi is a radical one and simply means that, the accused was somewhere else at the material time an offence was committed and could not possibly be at the scene of the crime to partake in it. Thus, once an accused person has pleaded alibi and stated where he was at the time of commission of a crime and the person he was in company of, the burden of disproving same is on the prosecution; to investigate and prove its case beyond reasonable doubt. Failure to do so is an admission of the story of the accused. For his plea to be destroyed, the prosecution must adduce sufficient evidence to fix the appellant at the scene of the crime.

The appellant’s plea of alibi was given at the earliest opportunity – See Exhibit “D”. In his evidence at the trial he testified as follows:

“I left the hospital at about 8.30pm on 2/8/97 to my friend’s house. The name of my friend is Ali. I slept in the same room with him and in the morning we all went our ways I had to vacate my room in my house to sleep with a friend.”

To disprove this alibi the prosecution called PW 8 and PW10. The testimony of PW8 runs thus:

“PW8 – Male, Moslem affirmed S/Hausa Abdul-rasheed G. I live at Gobarau Quarters Katsina. I am a Primary School teacher I know the Accused person by my side. He was wearing a jacket and a trouser. He told me that there were visitor in his house and he left his room for the visitor to sleep in so he come to me to sleep in my room. I only saw him in the morning in my room I could not say when he entered the room as I was sleep then he entered. I went to bed around 9.00pm I was not alone in the house. There were many of us sleeping in the house. We used to close the house at 10 pm morning daily and open at prayer time in the morning following day. One Hajiya Habiba who used to open the house in the morning each day because she used to sell fire wood infront of the house. Later in after some few days I heard that the Accused person was involved in an armed robbery. That is all.”

PW10 gave the following testimony:

“PWl0 – Female, muslim affirmed S/H. I live at Gobarau quarters Katsina. I am a Abdulazi, Garba. He lives in Gobarau Katsina. He is my son. We live in the same house. On the 1/8/97 at around at about 9.30pm I was at home. I close my house every day at 9pm I closed the house on that day the 1/8/97 at 9pm the following day I opened the door to for the house after morning prayers. I said the morning prayers at 6am that is all.”

What was the reaction of the Court of Appeal? The Court below held that:

“With the testimonies of PW8 and PW10, it becomes imperative on the appellant to give clue on the manner and time he enters PW8’s room if his defence of alibi is to succeed.”

The reasoning of the court below is deeply flawed. In the first place, the appellant stated where he was at the time of the commission of the crime. Secondly, he gave the name of the person at whose house he slept. Thirdly there is evidence that this house is locked from 9pm till 6am. Surely the appellant discharged the onus placed upon him by giving particulars of his whereabouts. See Okosi v. The State (1989) 1 NWLR (Pt. 100) 642. What is more there is no evidence from the prosecution that PWS’s house was broken into after 9pm on the fateful night. In the instant case, there is clearly no reliable evidence to fix the appellant at the scene of the crime. His alibi was not disproved. This is enough to dispose of this appeal in favour of the appellant.

I must not forget the evidence of PW7 the wife of the deceased. She gave an eye witness account of what happened. This is what she said. In her evidence-in-chief, she testified as follows:

“Rukayya Abdulkabir. I live at Gambarawa Quarters Katsina. I know the accused person 2/8/97. Two people entered inside our house they woke my husband up and started beating him. I do not know the two people but I saw their structures and all of them was black and one of them was limping. They entered the house in the night. When I woke up I saw Kabir Almu inside the house. I know him before the incident happened. He lived at Gambarawa Quarters. Beside beating my husband they also stabbed him with a knife. They asked my husband to give them money. He gave them some money and they left. He cried for help and people came rushing into the house and my husband was taken to the Hospital. He died at the Hospital. That is all.”

Under cross-examination by the court this witness said:

“PW7 – 1 am a muslim and a mother. To God I know the Accused person was among the two people who entered the house and was limping. If I saw my H/W. I will know it. This writing contained on this piece of paper handed to me is not my H/W/ However I know whose H/W. It is one Muhammadu’s H/W. who also lives at Gambarawa Quarters. He is my younger brother. I directed that Muhammdu to write a letter to the Junior sister of the Accused person. I did not read the letter before it was sent. (Underlining for emphasis).

Still under cross-examination by counsel for the appellant the witness said:

“PW7 – No I did not write the letter. I am a Moslem the content of the letter did not agree with what I instructed him (Muhammadu) to write. He was not instructed to say that the Accused person is among the people who robbed my husband. At the time of incidence I did not see his face but I saw his face now. That is all. (Underlining for emphasis).

From her testimony PW8 was a most unreliable eyewitness. In one breath she said she did not know the two persons who attacked her husband. In another she said the appellant was one of the robbers and that she knew him before the incident. In yet another breath she denied instructing her younger brother to say in a letter written to the younger sister of the appellant that the appellant was one of the robbers that attacked her husband. The position of the law is clear. The onus always in a criminal offence is for the prosecution to prove beyond reasonable doubt the guilt of the accused and failure to do so, will automatically lead to the discharge of the accused person – Onubogu v. The State (1974) 9 S.C.I. If there are contradictions in the evidence of the prosecution, and the contradictions materially affect the charge, doubt will be created and the benefit of it must be given to the accused person, in which case he will be discharged.

This leads me to the issue of identification parade. Identification parade is only necessary in the following circumstances:

Where the victim (witness) did not know the accused before and the first acquaintance with him is during the commission of the offence;

Where the victim (witness) was confronted by the defendant for a very short time; and

Where the victim (witness) due to time and cir-cumstance might not have had the opportunity of observing the features of the accused. I am in agreement with counsel for the appellant that an identification parade was not necessary in this case since PW7 was picked out the appellant knew him before the incident. As a matter of fact according to PW9, the appellant is the brother of the deceased, the husband of PW7. There is also evidence that they all lived in the same quarters. See Ikemson v. The State (1989) 3 NWLR (Part-110) 455 at 472.

One last point. A slipper was recovered at the scene of the crime. The prosecution contended that it belonged to the appellant. In the course of the trial the appellant was asked to try it on. He did. It did not fit. It became crystal clear that the slipper did not belong to the appellant. It must be borne in mind that the robber that attacked the deceased wore it.

One does not need a soothsayer to see that from the evidence I have highlighted that the appellant was not at the scene of the crime. The evidence called by the prosecution did not in anyway link him with the commission of the offence with which he was charged, tried and convicted. The prosecution clearly failed to prove its case beyond reasonable doubt as required by law.

In my judgment, this appeal has merit. It must be allowed. I therefore allow the appeal, set aside the appellant’s conviction and sentence. He is consequently acquitted and discharged.

SC. 283/2005