Mgbeleke Ovuoba V. The State (2016)
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RITA NOSAKHARE PEMU, J.C.A.
This appeal is against the Judgment of the High Court of Ebonyi State of Nigeria, Abakaliki Judicial Division holden at Abakaliki; in which the Appellant and others were convicted for arson and sentenced to a term of seven years in prison.
FACTS LEADING TO THE APPEAL
The Appellant and five others were arraigned before the lower Court for the offence of Arson, in that they were alleged to have wilfully and unlawfully set fire on the dwelling house of one Michael Onyibe on the 23rd day of May 2011. – Page 2 of the Record of appeal.
In proof of the charge, the Prosecution called four witnesses and tendered five (5) Exhibits, A, B, C, D, E respectively and Id I-E.
The Appellant called fourteen (14) witnesses and tendered four (4) Exhibits B, B1, J, and H respectively.
It is the case of the Prosecution that on the 23rd of May 2011, the Appellant and five others conspired to set fire on the dwelling house of Michael Onyibe and did fire on the said house.
?The Appellant in his defence, raised the defence of alibi; in that on the date when the
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crime was allegedly committed, he was not in Mgbo Abaja village, and could not have set fire to the house of Michael Onyibe.
The lower Court rejected the defence of alibi and convicted the Appellant and the other accused persons for arson, and sentenced them each to a term of seven years imprisonment.
The Appellant is dissatisfied with the judgment of the lower Court and is desirous of appealing same. Consequently pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 19th of September 2013 with two (2) Grounds of Appeal. – Pages 154-157 of the Record of Appeal.
The Grounds of Appeal are hereby adumbrated –
GROUND ONE: “The learned trial Judge erred in law when he dismissed the case alibi and part forward by the accused person in his defence in the charge of Arson and against the accused person”.
GROUND TWO “The learned trial Judge erred in law when he held without proof that the accused was the person that set fire on the properties, notwithstanding the age long case of village authorizing that both parties accepted it exists which metamorphosed to this malicious
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allegation.”
?The Appellant was out of time in filing his brief of argument and pursuant to an application filed on the 24th of July 2014, for extension of time within which to file his brief of argument, same was granted and the appellant’s brief of Argument was deemed filed on the 10th of October 2014. It is settled by Sir Ejike Ezenwa.
The Respondents brief was filed on the 28th of January 2016. It is settled by Rt. Hon. Augustine N. Nwankwagu, Attorney-General, Ebonyi State.
On the 9th of May 2016, the parties adopted their respective briefs of argument.
The Appellant proffered two Issues for determination in his brief of argument. They are –
1. “WHETHER THE DEFENCE OF ALIBI WAS ADEQUATELY CONSIDERED IN VIEW OF THE EVIDENCE BEFORE THE TRIAL COURT.
2. WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILFULLY AND UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL ONYIBE BEYOND REASONABLE DOUBT.”
The Respondents adopts the Appellant issues for determination, ? but adds another issue viz –
“WHETHER THE APPELLANT CAN RAISE FRESH ISSUE ON APPEAL WITHOUT THE LEAVE OF THIS
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COURT.”
In considering this Appeal, I shall do so based on the Appellants issues for determination as well as the additional issue proffered by the Respondent.
ISSUE NO 1
The Appellant submits that in his Statement to the Police dated 23/5/2011, – Exhibit “D”, he stated therein that he was not in the village of the victim on the date of the commission of the crime.
He submits that the slightest plea of alibi must be investigated. That the prosecution did not investigate the alibi, even though it was timeously raised, and failure to do so is fatal to the case of the prosecution.
He submits that he, in the instant case in his statement to the Police Exhibit “E” and oral evidence in Court raised the defence of alibi. That he was at his house at Obegu Mgbo, Izzi L.G.A., a fact which was corroborated by the testimony of DW10.
He submits that there is no positive evidence which cancels the alibi raised by the appellant.
Moreso, the eyewitness could not have seen and identified the appellant at the scene of the crime, hence it was dark.
?That the Appellant was arrested on the day the incident took place and
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this arrest was effected before any of the eyewitnesses made a report or told the police the identity of the culprits.
Moreso, when Ugo Nwagbagu DW7 admitted in his Statement to the Police that the arrest of the appellant and other accused persons were done out of malice, suspicion and speculation.
He submits that the lower Court failed to invoke the provisions of Section 16 7(d) of the Evidence Act 2011, on the presumption of the Statement of the appellant on 3/6/2011, which the prosecution failed to produce.
That the prosecution also failed to produce the Statement of Ugo Nwogbaga, head of the vigilante men in Mgbo Agbaja village – village of the Complainant.
It was the Appellant who tendered the said Statement on the 26th of March 2013 as Exhibit “H”.
That the arrest, detention, trial and conviction of the appellant arose from a witch hunt by the members of Mgbo Agbaja Community. There is no real evidence linking the appellant to the crime.
He submits that there are inconsistencies in the evidence of the prosecution witnesses.
That if the trial Court had considered these facts, it would not have
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convicted the Appellant.
Urges Court to resolve the contradictions of the prosecution witnesses in favour of the Appellant.
ISSUE NO 2
The Appellant submits that it is the duty of the Prosecution to prove the charge against the Appellant beyond reasonable doubt.
He submits that in order to establish the offence of ARSON, the prosecution must prove the following –
1) “That fire was set to a building or structure.
2) That the fire was set by the accused persons.
3) That the accused persons set the fire.
4) That the fire was set wilfully – citing JAMANI v. STATE (2005) 21 WRN 191.”
He submits that where the prosecution fails to prove the charge against the Appellant beyond reasonable doubt, the Appellant is entitled to an acquittal.
He submits that the Prosecution has failed to establish the essential ingredients of the offence of Arson against the Appellant.
RESPONDENT’S ISSUE C
The Respondent has argued that during the trial at the Court below, the defence of alibi was not raised by the Appellant.
That the Appellant only informed the trial Court where he was on the 22/5/2011.
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He never told the Court in his evidence that on the 23rd of May 2011, at about 00.15hrs, he was not at Mgbo Agbaja village.
He submits that the offence was not committed on the 22nd day of May 2011 but on the 23rd day of May 2011 at about 12.15 am.
That in the instant appeal the Appellant having not given evidence to establish the defence of alibi at the trial Court, cannot use the platform of his brief to supply alibi at the Court of Appeal.
This constitutes a fresh issue, as that would be tantamount to the Appellant, raising the issue of Alibi for the first time on appeal, and this, without the leave of this Honourable Court having been sought and obtained. This is because the issue of alibi was not raised at the trial Court. – citing FILCHARLES ORGAN & ORS v. NLNG & ANOR (2014); MRSCJ (VOL 23) 25. Pp, 28-29, RATIO 3.
He submits that the Appellant, not having raised or argued the defence of alibi at the trial Court is wrong in law to have formulated and argued his Issue No. 1 which borders on ALIBI, without first seeking and obtaining the leave of this Honourable Court.
Urges Court to strike out Issue No. 1 formulated
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for determination by the Appellant.
I have perused the submission made by learned counsel for the Respective parties.
The Appellants statement to the Police is as shown at Pages 35-36 of the Record of Appeal. The Statement was made on the 23rd of May 2011.
He said inter alia in his statement to the police –
“? I was in my house all through yesterday the 22/5/2011?”
I dare say that this piece of statement removes the issue of alibi. This is because the crime was committed on the 23/5/2011 and not 22/5/2011.
The Appellant testified as DW11 on the 13th of May 2013 – Page 128 of the Record of Appeal.
I shall reproduce his entire evidence verbatim. –
“? I am a farmer. I know Mike Onyibe. I did not commit the offence. After we were given autonomous status, the people of Ndiebor imposed a levy on us which we refused to pay. They destroyed my house and carted away money which my children gave me to plaster my house. I was arrested and taken to the village play ground after torturing me. The Police came in and arrested me and later conducted a search warrant in my house without recovering
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anything. At the Police Station, we were not granted bail. Ugo Nwogbagu, Nwede Chukwu, Nkwegu Nshi Otta are the persons that arrested me. That is all.”
I must say, unequivocally, that no where in the Appellant’s statement to the Police of 23/5/2011, or his evidence in Court did he raise the issue of alibi.
What he said in his statement to the Police was that he was in his house on the 22/5/2011, NOT 23/5/2011 when the crime was allegedly committed.
To say that the alibi put up by the Appellant was not investigated is misconceived. How do you investigate what does not exist? You cannot put something on nothing. It will collapse. MCFOY v. U.A.C.
Without belabouring this issue, I am of the view that, alibi, not having been raised at the lower Court, the Appellant was not obligated to seek any leave of this Court before appealing. For the Appellant to even proffer the issue that his alibi was not investigated is misconceived.
This knocks off Issue No. 1 in the Appellants issue for determination and Issue No. 3 in the Respondents’ issue for determination. For the trial Court to even venture into considering the issue of
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alibi in his Judgment is misconceived, and a grave error.
ISSUE NO 2
The Appellant was convicted for the offence of Arson simpliciter.
I had earlier on in this Judgment set out the essential ingredients in the offence of Arson, which must be established to secure a conviction.
A look at Id I-E, it seems to me that they do not represent any STRUCTURE OR BUILDING that was burnt.
The Prosecution made a futile attempt to establish that a building was burnt, but I am of the view that he failed to do this ID I-E are pictures of rubber burnt, part of a motorcycle, a window blind and a picture of a sale made ceiling. There is no EXHIBIT showing any burnt structure or building, tendered.
PW4 Otuu Ojukwu, the Investigating Police Officer did not say whether he visited the scene of crime. He only said that he rushed to the village square where the villagers had arrested the 4th and 5th accused persons.
I find that the prosecution has not been able to establish that a “STRUCTURE”, within the ambit and interpretation of the law was burnt. IdI – E say nothing. The Court is left to speculate.
A decision of Court
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based on suspicion and speculation is faulty. – ARCHIBONG v. ITA (2004) 2 NWLR (Pt. 858) 590 597; ACB PL v. EMOSTRADE LTD (2002) 8 NWLR (Pt. 770) 507.
Was the fire set by the Appellant? The evidence of PW1 (the complainant) and PW2 Paul Nwegede is instructive as to TIME.
While PW1 testified on the 21st of June 2012 that the arson took place at about 12.15 am on the 23rd of May 2011, – (Page 83 of the Record of Appeal); PW2 testified on the 28th of September 2012, and answering questions put to him under cross-examination, he said that the arson took place at about 9-10 pm. – Page 88 of the Record of Appeal.
It is evident that the arson took place at night. The Court was not told about the lighting condition there in that village. This, coupled with the discrepancies as to time given by PW1 and PW2, which evidence was grossly contradictory, left a fatal dent on the case of the Prosecution.
Indeed, the Court is left to speculate and guess.
There is no positive identification of the Appellant connecting him to the crime.
Failure of the prosecution to establish that it was the Appellant who participated in the
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crime makes it unnecessary for me to go on to consider the other ingredients in the crime of ARSON.
The Prosecution had left a huge lacuna in its trial and that lacunae cannot be filled by this Honourable Court.
It is for the prosecution to provide the nexus between the Appellant and the commission of the crime and this it has failed woefully to accomplish.
For the lower Court to have found the Appellant guilty of the offence of ARSON, indicates that it lost focus of the facts of the case.
It is clear, that the lower Court failed to see that the prosecution failed to discharge its burden of proving that the appellant, wilfully and unlawfully set fire to the dwelling home of Michael Onyibe, beyond reasonable doubt.
Therefore his conviction and sentence is one that this Honourable Court must quash.
This issue is resolved in favour of the Appellant and against the Respondent.
?The Appeal succeeds and the conviction and sentence of the Appellant, in the Judgment of the Abakaliki High Court, presided over by Hon. Justice P. O. Elechi, and delivered on the 28th of June 2013 in Charge No. HAB/6C/2012 is hereby
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quashed while the Judgment is hereby set aside. The Appellant MGBELEKE OVUOBA (M) is hereby discharged and acquitted.
Other Citations: (2016)LCN/8787(CA)
