Nurudeen Babatunde V. The State (2016)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an appeal against the judgment of Osun State High Court of justice sitting at Ikirun Judicial Division delivered on 11th day of July 2013. The Appellant was arraigned before the Court on a three count charge of conspiracy, armed robbery and unlawful possession of firearms with others at large under the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria, 2004. The charge read thus:
1. Conspiracy contrary to Section 6(b) and punishable under Section 1(1) and (2) of the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria 2004.
2. Armed Robbery contrary to and punishable under Section 1(1) and 2(a) of the Robbery and Firearms (Special Provisions) Act, CAP R11 Laws of the Federation of Nigeria, 2004.
3. Illegal possession of firearms and contrary to and punishable under Section 3(1) of the Robbery and Firearms (Special Provisions) Act, CAP R11, Laws of the Federation of Nigeria 2004.
Upon arraignment, the Appellant pleaded not guilty to the three count charge. To prove the
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guilt of the Appellant, the prosecution called two witnesses and tendered one exhibit marked Exhibit A. Appellant defended himself through his oral evidence. He did not call any witness.
The case of the prosecution against the Appellant was that the Appellant with others at large on 12/3/2008 at about 3.00 a.m. forcefully gained entry into the house of one Adewale Ajala after the entrance door had been broken at No. 13, Okelba Area, Ikirun, Osun State, armed with guns, cutlasses and knives and demanded the sum of N600,000.00 which the robbers insisted they were aware that their victim received that sum in the afternoon. The victim of the crime who is PW2 said that the robbers robbed him of the sum of N120,000.00 and three handset phones.
According to PW2, the robbers were about to rape his sister but for the early morning call for Muslim morning prayers which made them took their leave. The Appellant’s case was that he did not participate in any armed robbery. That on 12/3/2008 he was not at Oke-Iba, Ikirun but was at Ilorin in Kwara State.
At the end of the evidence of parties, respective learned counsel addressed the Court after which the
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learned trial Judge in a considered judgment delivered on 11th July, 2013 discharged and acquitted the Appellant on count No. 3 but convicted him on count nos. 1 and 2 respectively. The Appellant, dissatisfied with his conviction and sentence, appealed to this Court vide a Notice of Appeal dated and filed 30/7/2013 containing four (4) Grounds of Appeal.
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To argue the appeal on 9/3/2016, Mr. T. S. Adegboyega, learned counsel for the Appellant who filed Appellant’s Brief of Argument dated and filed on 5/5/2014 raised three issues for determination of this appeal thus:
1. Whether the failure of the trial Court to conduct trial-within-trial before admissibility of Exhibit “A”, the confessional statement did not occasion a miscarriage of justice. (Ground 1 and 2)
2. Whether the prosecution proved its case against the Appellant before the trial Court sufficient enough to sustain the conviction and sentence of the Appellant for the offence of armed robbery. (Ground 3)
3. Whether the defence of alibi is available to the Appellant, if so whether the failure of the learned trial Court to consider the defence at all occasioned miscarriage of justice.
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(Ground 4)
Mr. Dapo Adeniyi, Director of Public Prosecution, Osun State settled the Respondent’s Brief of Argument which was dated 30/1/2015 but filed on 18/2/2015 but deemed properly filed and served on 9/3/2016.
In the said Brief of Argument, learned counsel for the Respondent raised three issues, thus:
1. Whether failure of the trial Court to conduct trial-within-trial before admitting Exhibit ‘A’ (the confessional statement) is proper in law.
2. Whether the case of the prosecution was proved beyond reasonable doubt.
3. Whether the defence of alibi will avail the Appellant in the circumstances of this case.
Since the three issues at piece raised by both parties are the same in substance, I shall adopt them as raised by the Appellant’s counsel in resolving this appeal.
ARGUMENT OF ISSUE 1
Whether the failure of the trial Court to conduct trial-within-trial before admissibility of Exhibit ‘A’, the confessional statement did not occasion a miscarriage of justice. (Grounds 1 and 2)
Arguing this issue, learned counsel for the Appellant submitted that the reliance placed on Exhibit A to convict the Appellant on counts 1
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and 2 by the learned trial Judge was unfounded given the fact of the defence of involuntariness in the making of the said Exhibit A. Counsel referred to page 55 of the record to submit that the defence counsel raised a strong objection to the admissibility of Exhibit A and the ground of that objection was that the Appellant said he made same under duress as can be seen at page 66 of the record where the learned trial Judge summed up the reason for the objection. Counsel referred to page 55 of the record where under cross-examination, PW1 said that “the statement recorded was his response to my question, to submit that where a statement is the product of a question and answer session between the accused and the police officer, such statement cannot be regarded as free and voluntary. He relied on the case of Namsoh vs. The State (1993) 5 NWLR (pt.292) 129 and Afolahan vs. State (2012) 13 NWLR (pt. 1316) 185 paras 201 – 202. Therefore, counsel faulted the finding of fact by the learned trial Judge at page 67 of the record, where the learned trial Court concluded thus: “I do not believe the accused that he did not volunteer the confessional statement. I believe he
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made the confessional statement voluntarily.?
Learned counsel submitted that the test for admissibility of confessional statement is its voluntariness and not relevancy. He therefore relied on the case of Eke vs. State (2011) 3 NWLR (pt. 1235) 589 @ 603 paras A- B and Gbadamosi vs. State (1992) 9 NWLR (pt.266) 465 @ 495 – 496 paras H – D, to submit that once the issue of voluntariness of confessional statement is raised, the Court is bound to conduct trial-within-trial and make a Ruling either way before taking any further step on the matter. Learned counsel submitted further that failure of the learned trial Judge to conduct trial-within-trial to determine the voluntariness or otherwise of Exhibit A renders Exhibit A inadmissible evidence. He called in aid the cases of Gbadamosi vs. State (supra); Eke vs. State (supra) and Olayinka vs. State (2007) 9 NWLR (pt.1040) 577 paras A – F to submit finally that any finding and decision based on such inadmissible evidence as in the instant case would be perverse and occasion a miscarriage of justice. He urged us to resolve this issue for the Appellant.
Reacting, learned counsel for the Respondent
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referred to the definition of confession in Section 28 of the Evidence Act to submit that a critical look at Exhibit A will reveal that it is an admissible evidence upon which the trial Court can validly act on. Learned counsel submitted that the evidence of PW1 as can be seen at page 55 of the record was not based on the report submitted to him but on the investigation conducted by him.
Counsel submitted that although the particulars of the objection of the Defence counsel was not recorded by the Court, that the objection was that the Appellant said that he volunteered his statement in Yoruba language while the police recorded it in English language which was overruled by the Court on basis of relevancy. He referred to the evidence of PW1 at page 55 of the record. Learned counsel at this juncture differentiated between the case of Namsoh vs. State (Supra) heavily relied on by the Appellant from the instant case.
According to counsel, in Namsoh’s case, PW7, who was the Investigating Police Officer was putting questions already prepared by his superiors on a sheet of paper to the Appellant, while the answers were recorded; which, counsel said amounted to
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question and answer session; and a statement obtained that way could not have been expected to be voluntary. Whereas, said counsel, in the present case, the position is different in the sense that only questions that would make the Appellant’s statement coherent were put to him. He then called in aid the case of State vs. Rabiu (2013) 4 SCM 213 @ 214 to submit that such line of questioning is permissible in law. Counsel submitted while relying on the case of Archibong vs. The State (2006) 14 NWLR (pt. 1000) 349 @ 377 ? 378 paras H B, that the issue of involuntariness of Exhibit A was an afterthought by the Appellant since he did not raise same when Exhibit A was sought to be tendered in evidence. It was only raised during the Appellant examination-in-chief which is both belated and unknown to law.
Counsel relied on the case of Olalekan vs. The State (2001) 18 NWLR (Pt.746) 793 @ 826 para F – G to submit that the proper forum to take objection on the involuntariness of a Confessional Statement is at the trial Court and not at the Appellate Court. Counsel called in aid the cases of Jua vs. The State (2010) 2 SCM 6; Olalekan vs. State (Supra) and
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Tanko vs. State (2008) 16 NWLR (PT. 1114) 597 @ 628 para A – B to submit that Confessional Statement is the best evidence and is sufficient to ground conviction without corroborative evidence. He finally submitted that the cases relied on by the Appellant on his Brief of Argument cannot avail him because he raise the issue of involuntariness after Exhibit A has been admitted in evidence and not when it is about to be admitted. He urged us to resolve this issue for the Respondent.
ISSUE TWO
Whether the prosecution proved its case against the Appellant before the trial Court sufficient enough to sustain the conviction and sentencing of the Appellant for the offence of armed robbery. (Ground 3)
Addressing this issue, learned counsel for the Appellant hinted that the learned trial Judge relied heavily on the evidence of PW1 and PW2 in convicting the accused for conspiracy and armed robbery. He then pointed out that in an offence of armed robbery, the prosecution must prove beyond reasonable doubt all the element of the offence namely (1) That there was an armed robbery (2) That the accused was armed; and (3) That the accused, while with the arm or arms
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participated in the robbery. For this position of the law he relied on the case of Oseni vs. State (2012) 5 NWLR (pt. 1293) 351 @ 385 para C – F. Counsel submitted that in establishing the guilt of the accused beyond reasonable doubt, the prosecution can do so by (1) Confessional Statement of the accused (2) Circumstantial evidence and (3) Evidence of an eye witness of the crime.
Learned counsel then referred to proceedings of Court at pages 54 – 55 of the record to submit that record of proceedings being the final reference of events, step by step that took place in Court during trial must be scrupulously kept to be accepted as error free in accordance with Section 36(7) of the 1999 Constitution (as amended). Counsel argued quite forcefully that since it is not open to the Appellate Court to speculate on the manner of objection raised by defence counsel, leading to the terse ruling admitting Exhibit A on ground of relevancy only, that the failure of the learned trial Judge to record the nature of objection raised against the admissibility of Exhibit A is very fatal to the case of the prosecution.
Counsel relied on the case of Emiowe vs. State
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(2000) 1 NWLR (Pt.641) 408 @ 418 to submit that the burden of proving that a Confessional Statement is voluntary rests squarely on the prosecution to show that in obtaining the statement, the police complied with the usual rules, practice and procedure. He referred to evidence of PW2 at pages 56 – 57 and 58 – 59 to argue that it is to the effect that, “one Atiku who was arrested in connection with robbery of my properties mentioned the name of the suspect Nurudeen Babatunde as one of them”. He then submitted that evidence of PW2 as to the identity of the Appellant can only but be hearsay, which in law is inadmissible. He relied on Section 38 of the Evidence Act, 2011. Counsel argued that since none of the witnesses gave evidence that the said Atiku is dead, that this case does not fall within the purview of Section 39 (a) of the Evidence Act, 2011. Counsel relied on Odogwu vs. State (2013) 14 NWLR (pt. 1373) 74 @ 103 para G – B to submit that the oral evidence of the prosecution witnesses touching on the Appellant were all hearsay evidence and ipso facto inadmissible evidence.
Counsel submitted, that agreeing without conceding that Exhibit A is admissible
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evidence, that there is a different description of event on Exhibit A and evidence of PW2. For instance, said counsel, while Exhibit A states “…in the year 2008 around March, myself, Atiku ‘M’, Falope ‘M’ and one friend of Atiku we went to one Wale parts House along Eko Ende road, Ikirun and robbed the man”; PW2 testified that “there is armed robbery operation/attack at Okeba, Ikirun in March, 2008.” Counsel then submitted that had the learned trial Judge adverted his mind to the fact that Okeba in Ikirun is not the same with Eko Ende Road, Ikirun that would have disconnected the Appellant with this Okeba robbery incident. Learned counsel called in aid the case of Olayinka vs. The State (2007) 9 NWLR (Pt. 1040) 561 @ 578 para F – H to submit that Exhibit A and evidence of PW2 which the learned trial Judge relied on in convicting the Appellant on count 1 and count 2 are all inadmissible evidence which ought to be discarded. He urged us to resolve this issue for the Appellant.
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Reacting, learned counsel for the Respondent submitted that the onus of proof placed on the prosecution in criminal cases is proof beyond reasonable doubt and not proof beyond all
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shadow of doubt. He relied on Jua vs. The State (Supra), Shehu vs. The State 4 SCM 190 (sic) and Shurumu vs. The State (2010) 19 NWLR (pt. 1218)73 @ 109 para F – H.
He referred to Black’s Law Dictionary, 6th Edition page 309 and the case of Nguma vs. A. G. Imo State (2014) 3 SCM 137 @ 158 para F – G for a definition of “conspiracy” to submit that all that is required for conviction is evidence of agreement of the parties, express or implied. He relied on Adejobi & Anor vs. State (2011) 7 SCM 1. Counsel then submitted that Exhibit A placed the Appellant at the scene of the robbery, albeit outside the house while the crime was being committed inside. Counsel submitted that the Appellant actively participated with others at large and one Atiku who is now deceased in the commission of the crime. He submitted that evidence adduced at trial showed that the Appellant gave needed information and facilitated the robbery.
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Counsel relied on Nguma vs. A.G. Imo State (supra) to further submit that the position of the law is clear that whoever participated in the commission of a crime or procures or aids or abet the commission is equally guilty of the offence
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committed in the same degree. Counsel argued that there are enough evidence that the Appellant conspired with one Atiku, (now deceased) and others at large to rob PW2. Counsel referred to pages 56 – 59 of the record to submit that the combination of evidence of PW2 and Exhibit A squarely proved the guilt of the Appellant beyond reasonable doubt. Counsel belated the submission of learned Appellant’s counsel that the evidence of PW1 is hearsay when PW1 who is the Investigating Police Officer only testified as to what he discovered during investigation. Counsel further referred to evidence of PW2 at page 58 – 59 to the effect that it was one Atiku (now deceased) who was arrested in connection with the robbery that mentioned the Appellant and on that score the Appellant volunteered Exhibit A; admitting having committed the crime. Counsel argued that the evidence of PW2 cannot amount to hearsay since Exhibit A corroborated same. He pointed out again that it was in the course of his defence that the Appellant raised the issue of involuntariness of Exhibit A. He then relied on FRN vs. Iweka (2011) 12 (pt.2) SCM 213 and Olalekan vs. State (supra) to submit that the
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right time to object to the admissibility of a Confessional Statement in evidence is at the point of tendering same. And as such trial within trial cannot hold after a statement had already been admitted in evidence.
Finally, counsel submitted that Okeba Street, Ikirun and along Eko-Ende, Ikirun is one and the same. He urged us to resolve this issue for the Respondent, too.
ISSUE 3
Whether the defence of alibi is available to the Appellant, if so whether the failure of the learned trial Court to consider the defence at all occasioned miscarriage of justice. (Ground 4)
In arguing this issue, learned counsel for the Appellant cited the case of Odogwu vs. State (2013) 14 NWLR (pt. 1373) 74 @ 127 to the effect that that the crux of Nigeria Criminal Jurisprudence is that it is better for ten guilty persons to be set free than for one innocent person to be convicted and thereafter submitted that the learned trial Judge refused to be persuaded by the above caution to properly evaluate the evidence led by the prosecution before convicting and sentencing the Appellant to death by hanging. Counsel argued that the evidence of PW1 and PW2 are not
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direct or eye witness evidence. That while PW1 testified as to the product of his investigation, PW2 testified against the Appellant only on what one Atiku told him which in any event amounts to hearsay evidence and inadmissible in law. He referred to Njoku vs. State (2013) 2 NWLR (pt 1339) 548 @ 560 para G-H. Counsel submitted that the extra judicial statement of PW2 (the victim of the robbery) was not tendered before the trial Court and as such cannot be considered in reviewing this case now. He commended to us the case of Dele vs. State (2011) 1 NWLR (pt. 1229) 508 @ 534 para E-F.
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Learned counsel submitted that it is trite in law that circumstantial evidence is very often the best evidence, but argued that “circumstantial confession” (sic) evidence presented by the prosecution in this case was not capable of proving any proposition with the accuracy of mathematics. He adopted all his arguments on Issue No.1 as regards Exhibit A. Counsel submitted that at page 60 of the record, the Appellant testified that he was not in Oke Iba, Ikirun but at Ilorin on the day of the said robbery incident, thereby setting up the defence of “alibi”. Counsel further
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submitted that alibi is a question of fact that must be established or discredited by credible evidence which the prosecution in this case has failed woefully. He noted that the prosecution did not cross-examine the Appellant on this defence of alibi and even the learned trial Judge did not properly consider the defence in this case. Counsel argued that it cannot be said that the Appellant did not raise the defence of alibi timeously, may be in Exhibit A to enable the police carry out the investigation, because Exhibit A has failed to pass the test of admissibility and as such Exhibit A is inadmissible documentary evidence. He called in aid the case of Olayinka vs. State (Supra) @ 586 – 587 paras H-B to the effect that the law places a duty on the Court to consider any defence at all put up by an accused no matter how improbable or stupid it might be. He urged us to resolve this issue also for the Appellant.
Reacting, learned counsel for the Respondent submitted that the defence of alibi is a matter peculiarly within the knowledge of the Appellant and as such he is expected to provide facts or evidence to show that he was at a particular place other than
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where the prosecution says he was at the material time. He commends to us the case of Alimu vs. The State (2009) 4 SCM 40 @ 47 paras B-E. Counsel submitted further, that the law is that for an accused person to successfully rely on the defence of alibi, he must raise it at the earliest opportunity and furnish the police with full details to enable them investigate same. He relied on Afolalu vs. The State (2010) 11 SCM @ 6 -7; Alimu vs. The State (supra) and Sheu vs. The State (2010) 4 SCM 180. Learned counsel submitted that the defence of alibi raised by the Appellant at the trial is belated and an afterthought because he neither raised it when he was arrested by the police nor when he made Exhibit A, nor at the investigation stage when the police would have investigated same. He urged us to discountenance the defence and resolve this issue for the Respondent.
RESOLUTION OF ISSUE 1
There is no doubt that Confessional Statement is one of the ways the prosecution can prove the guilt of an accused person beyond reasonable doubt. This is especially so when the Confessional Statement is positive, unequivocal and voluntary. It is sufficient to ground the
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finding of guilt and it is immaterial that the Appellant resiled from them during his trial. See Mumuni & Ors. vs. The State (1975) 6 SC. 79 @ 94; Nkwuda Edamina vs. The State (1996) 3 NWLR 530 @ 537.
More often than not, confessional statements coming before our Courts are made extra-judicially, i.e. usually before the police during investigation of the case. At some other times, the accused is illiterate and/or does not understand the language of the Court which is English language, necessitating recording the statement in the language the accused understands and translating same to English language. All these call for caution on the admissibility of extra-judicial confessional statements of accused persons to ensure that confessional statements which are not voluntary or where necessary, not interpreted, or otherwise not of the making of an accused person, or which were otherwise procured by fraud, inducement, threat, promise, intimidation or duress is not foisted on him and used in evidence against him. See: Samuel Ojegele vs. The State (1988) 1 NWLR (pt.71) 414; Kim vs. State (1992) 2 NSCC (pt. 111) 581 @ 593.
However, it is trite in law
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that the test for admissibility of a confessional statement is its voluntariness. Once the issue of involuntariness of a confessional statement is raised by the accused, it must be resolved one way or the other. In the case of Emmanuel Eke vs. State (2011) 3 NWLR (pt. 1235) 589 @ 603 para A- B, per Fabiyi, JSC put the position of the law, thus:
“It should be stated clearly that the test for admissibility of a confessional statement is its involuntariness. Once the issue is raised as done at the trial Court, it must be resolved or settled one way or the other before its admission or otherwise.”
The usual way of resolving issue of involuntariness of confessional statement once raised is what is known as trial-within-trial or mini trial within the main trial. It is conducted at the point the issue as to the voluntariness is raised. A challenge as to the voluntariness or otherwise of a confessional statement is not the same as a denial of having made the confessional statement at all. The apex Court in the same case of Emmanuel Eke vs. The State (Supra) @ 609 para A-D opined thus:
?My lords, where a confessional statement is
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challenged on the ground that the accused person did not make the statement, the statement should be admitted since its admissibility is not affected.
That the statement was made voluntary or otherwise does not arise for consideration. But where a confessional statement is objected to on the ground that it was not voluntary, that is to say the accused person says he was forced or induced to make it, then a trial within trial must be held. See: Queen vs. Igwe (1960) 5 FSC p.55 reported as Igwe vs. Queen (1960) SCNLR 158; Ikpasa vs. A. G. Bendel State (1981) NSCC vol. 12 p.300. The trial within the main trial is designed to determine if the confession was voluntary. At the trial, the accused person must give evidence before witnesses called by him give evidence. At the end of the trial within trial, if the Court is satisfied that the confessional statement would not be admissible in evidence as an Exhibit and the trial Judge should rule accordingly.”
?A perusal of the evidence-in-chief of PW1 – the Investigating Police Officer through whom “Exhibit A” which is the extra judicial confessional statement of the Appellant was tendered show that learned
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counsel for the Appellant, Miss Folashade Ipede objected to the admissibility of the said “Exhibit A” on the ground that it was not made voluntarily by the Appellant, as can be garnered from paragraph 5 of page 66 of the Record of Appeal.
It is to be noted that the Appellant while giving his evidence-in-chief at pages 60 and 61 of the Record of Appeal testified inter alia, “I volunteered my statement at State CID in Yoruba language. Police beat me to obtain my statement”. The implication of all this is that the Appellant thereby challenged the voluntariness of his confessional statement at the point it was about to be admitted as Exhibit. One cannot conceive of a more appropriate time for the learned trial Judge to conduct a trial-within-trial to determine if the confessional was voluntary or not. This the learned trial Judge failed to do, but went ahead to admit and mark same as “Exhibit A”.
This, I must say is wrong and against all known criminal procedure. In the same case of Emmanuel Eke vs. The State (Supra) @ 603 para C-E, the Supreme Court opined thus:
?It is now settled as pronounced by this Court in Nwangbomu vs. The State
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(Supra) @ page 395 per Wali, JSC, that when admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the Judge to call upon the prosecutor to establish that it was voluntarily made by conducting a trial-within-trial. Such a procedural step must be taken at the point when the objection is raised. See R V. Omokaro 7 WACA 146; Ogoala vs. The State (1991) 2 NWLR (pt. 175) 509; Joshua Adekanbi vs. Attorney-General, Western Nigeria (1966) 1 ALL NLR 47, (1996) 1 SCNLR 75; Paul Ashake vs. The State (1968) NWLR 60 @ 65. It is clear to me that the trial Judge at the Tribunal goofed in failing to carry out the mandatory trial within trial to determine the voluntariness of the statement credited to the Appellant. To my mind, Exhibit 5 was admitted to no avail.?
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It is therefore safe to conclude that the failure to conduct trial-within-trial to determine whether or not the Appellant voluntarily made Exhibit A before admitting and marking same has led to wrongful admission of Exhibit A.
The law is trite that where evidence has been improperly received by the trial Court, even when no objection is raised, it
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is the duty of the Appellate Court to reject such evidence and decide the case on the available legal evidence, if any. This is so because where the conviction of the accused was based on improperly admitted evidence, the Appellate Court will reverse the decision of the trial Court since it is not certain that the trial Court would have come to a different conclusion if the evidence had not been admitted. See: Queen vs. Haske (1961) 2 SCNLR 183 and Bassey Akpan Achibong vs. The State (2006) 14 NWLR (pt. 1000) 349.
This is so because our law and practice placed a duty on the Court to consider and evaluate any defence put forward by an accused person in a criminal trial no matter how stupid or improbable such a defence may appear. See the case of Benson Ukwunneyi & Anor vs. The State (1989) 4 NWLR (pt. 1 14) 131. It is clear from all ramifications that the failure of the learned trial Judge to consider the defence of involuntariness of the confessional statement led to wrongful admission of Exhibit A. The necessary implication of this was aptly appreciated by that erudite jurist of blessed memory, Oputa, JSC in the case of Benson Ukwunneyi & Anor
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vs. The State (Supra) @ 156 paras C-E, when he opined thus:
?I will conclude this concurring judgment by saying a few words about proof beyond reasonable doubt.
This is the policy of our law. The policy derives from the fact that human justice has its human limitations. It is not given to human justice to see and know, as the great Eternal knows, the thoughts and actions of all men. Human Justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty persons escape than that one innocent man is condemned. And that is why the Court gives the benefit of any reasonable doubt to an accused person. That benefit should have been given by the trial Court to the 2nd Appellant.”
Having come to the conclusion that Exhibit A was wrongly admitted, I am constrained to and I hereby expunge same from the record. This has therefore created a doubt in the case of the prosecution, which necessarily must be resolved for the benefit of the Appellant. In Manshep Namsoh vs. The
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State (1993) 5 NWLR (pt.292) 129 @ 132, it was opined thus:
“It is fundamental principle of criminal law that once there is doubt about the guilt of the accused person, such doubt must be resolved in favour of the accused, the Courts have no choice but to discharge and acquit the accused for the offence charged.”
Having come to this conclusion, this Issue No. 1 is resolved in favour of the Appellant.
RESOLUTION OF ISSUE NO.2
It will be superfluous resolving Issue No. 2 since the prosecution solely based its case on Exhibit A which has been held, while resolving Issue No. 1, to have been wrongly admitted and expunged from the record. The said Exhibit A is the only exhibit admitted in this case and the prosecution built their case solely on same. I shall now turn to Issue No. 3.
RESOLUTION OF ISSUE NO. 3
By defence of alibi, the accused is saying that he was not at the scene of the crime and was therefore neither in a position to have committed the offence nor participated in its commission. A successful plea of alibi in a criminal case results in the acquittal of the accused person who relied on same. Given the exculpating
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nature of this plea and the fact that it is a matter peculiarly within the personal knowledge of the accused who raised same, evidential burden that rests on the prosecution throughout the trial is eased on the accused to discharge the burden of establishing the genuineness of the plea. In other words, the accused who raised plea of alibi must supply necessary information of his whereabouts at the material time sufficient enough to enable the police investigate same. See: Ukwunneyi vs. The State (Supra); Garba vs. State (1999) 11 NWLR (pt. 627) 422 @ 439; Njovens vs. The State (1973) S.C. 17 and Adisa vs. State (1991) 1 NWLR (pt. 168) 490 @ 507.
Further, the state of the law on defence of alibi is that it is not enough for an accused person raising alibi as a defence just to say that he was not present at the scene of the crime. He must go further to give sufficient particulars as to his whereabouts for the prosecution to investigate since it is a matter especially within his knowledge. The particulars must be furnished to the police at the earliest opportunity; otherwise the accused would not be able to rely on the alibi when raised for the first time in
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the course of the trial. This is obvious given the fact that an alibi raised for the first time in the witness box cannot be regarded as a serious defence. At best it is liable to be regarded as an afterthought. See Ikemson vs. The State (1989) 3 NWLR (pt. 110) 455; Farba vs. State (1999) 11 NWLR (pt.627) 422 @ 439 – 440. In the case of Benson Ukwunneyi vs. State (Supra) @ 144 paras G-H, the Supreme Court per Karibi-Whyte, JSC opined thus:
?The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial. In this case the 2nd Appellant?s defence of an alibi was made at the earliest opportunity and before he was charged with the offence. There was therefore a duty on the prosecution to verify from Chief Tagbo Kpela Ojoma, whether 2nd Appellant was in the party he sent to convey the body of Onuora Chizor to Enugu-Ezike General Hospital. It was also possible for the prosecution to verify when the party returned to Ogurugu, and whether the 2nd Appellant had the opportunity and could have committed the offence despite the fact that he was a member of the team.”
In the instant case, page 60 of the
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Record of Appeal shows that the Appellant only raised the defence of alibi for the first time in the witness box during trial, when he testified in-chief, thus:
?On 12-3-08 at Oke-Iba, Ikirun alleged in the charge sheet I was not in Ikirun. I was at Ilorin on that day.?
I must say that this contravenes all known parameters for setting up defence of alibi. It was set up for the first time at the witness box and is bereft of any particulars that ordinarily would have enabled the police to investigate same. The Appellant cannot be taken serious with this defence since it was no longer possible for same to be investigated at the point he raised it. I agree with the learned counsel for the Appellant on his submission vide paragraph 6.11 of their Brief that alibi is a question of fact that must be established or discredited by credible evidence. But it is regrettable that the Appellant failed to provide any particular(s) like the exact address of where he was at the material time, the name and particulars of the person(s) he was with at that time etc. It will amount to a wild goose chase to expect the police to go to Ilorin to investigate a
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clueless and wild alibi. The learned trial Judge was right to have ignored the defence as raised by the Appellant. To this extent, this issue is resolved against the Appellant.
It is clear that this Issue No. 3 has no bearing on the conviction of the Appellant by the learned trial Judge on counts 1 and 2, it is therefore equally of no moment in this appeal. Having resolved the only pivotal Issue No. 1 in this appeal for the Appellant, this appeal succeeds.
I hold that this appeal is meritorious. Consequently, the judgment of Hon. Justice I. O. Adeleke of Osun State High Court of Justice sitting at Ikirun Judicial Division in Suit No. HIK/2C/2011, delivered on 11th day of July, 2013 convicting the Appellant on Count No. 1 and Count No. 2 on the charge sheet and sentencing him to death by hanging is hereby set aside.
I discharge and acquit the Appellant.
Other Citations: (2016)LCN/8594(CA)
