Okputuobiode & Ors V. The State (1970)

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FATAYI-WILLIAMS, J.S.C. 

On 7th July, 1969, the appellants were convicted in the Ughelli High Court by Prest J. in charge No. UHC/IC/69 containing two counts of burglary, ten counts of arson, and six counts of stealing.

Originally ten persons were charged with these offences, but learned trial judge, after considering the evidence against each accused person in respect of each count and their respective testimony in defence, discharged the 5th, 7th and 10th accused persons after finding in his judgement as follows::-

“On the defence of alibi put forward by the 1st, 2nd, 5th, 7th, 9th and 10th accused, I am satisfied with the defence of alibi of the 5th, 7th and 10th accused. I find them not guilty on all the counts and they are acquitted and discharged.”

The facts which are relatively straightforward may be stated briefly as follows. All the complainants, who later testified as witnesses for the prosecution, reside either in Bethany-Ehao village or in Sapele-Ehao village (both villages being in Enwhe) while all the accused persons are from Ovwodokpokpo village. All the three villages are near Ughelli in the Mid-West State.

Bethany-Ehao village is on the outskirts of Ovwodokpokpo village and stretches, according to the trial judges’s notes, for about three quarters of a mile. Sapele-Ehao village is close to Bethany-Ehao village. In February 1967, the people of Ovwodokpokpo village sued those of Bethany-Ehao village for declaration of title to a piece of land at Ahoro.

The Bethany-Ehao people later counter-claimed in respect of the same land. While both claims were still pending, a group of people from Ovwodokpokpo village, on 19th August, 1967 raided the neighbouring villages of Bethany-Ehao and Sapele-Ehao, looted their property and set their houses on fire. Forty-six houses were thus destroyed at Bethany-Ehao and nine at Sapele-Ehao. The Bethany-Ehao village hall was also set on fire and destroyed.

Among those who raided the two villages on that day were the 1st, 2nd, 3rd, 4th, 6th, 8th and 9th accused persons who are now the appellants in this court. At the trial, all the accused persons, including the present appellants, denied the charge. With the exception of the 3rd, 4th and 6th accused persons who said they were at home at Ovwodokpokpo village on the day of the incident and the 8th accused who did not say where he was, all the others said they were elsewhere.

All the ten accused persons stated further that the people of Bethany-Ehao and Sapele-Ehao village had come to court to lie against them because of the land dispute.

In the course of his judgement, the learned trial judge referred to the evi-dence regarding the identification of the accused persons as follows:-
“Thus the 1st accused was identified twice, the 2nd accused three times, the 3rd accused four times, the 5th accused twice, the 6th accused twice, the 7th accused once, the 8th accused twice, the 9th accused four times and the 10th accused once.”

As a matter of fact, the evidence which the learned trial judge accepted showed that the 4th accused, who said he was at his farm at Ovwodokpokpo on the day in question and who was omitted from the above exercise, was also identified four times (that is, by 1st, 2nd, 5th and 8th P.Ws).

Be that as it may, the learned trial judge, after giving due consideration to the defence put forward by each accused, acquitted and discharged the 5th, 7th and 10th accused persons as earlier referred to in this judgement. With respect to the case against the remaining seven accused persons (now the appellants), the learned trail judge indicated that he was “not satisfied” with the defence of alibi put forward by the 1st, 2nd and 9th accused. He then found these three accused persons as well as the 3rd, 4th, 6th and 8th guilty as charged after finding finally as follows:-

“I am satisfied on the totality of the evidence that the prosecution has proved its case beyond all reasonable doubt against the 1st, 2nd, 3rd, 4th, 6th, 8th and 9th accused persons on all the counts as charged.I believe the evidence of the witnesses for the prosecution. They impressed me as witnesses of truth, particularly the evidence of Mami Agari, P.W.6….

I reject the evidence of the accused persons. I do not believe that this charge has been brought against them because of the land dispute nor do I believe that they have been selected for prosecution because they are prominent leaders in the community. The 8th accused said he was the “live-wire” behind the case they instituted against the Bethany people.

So indeed he may be, and so too do I believe that he was prime mover of this diabolical and inhuman destruction of property.”

Before us on appeal, Chief Williams, for the appellants, submitted that since the learned trial judge was satisfied with the defence of alibi put forward by the 5th, 7th and 10th accused persons he could not have been satisfied beyond all reasonable doubt that the appellants participated in the burning and looting which formed the basis of the charge against them.

This according to Chief Williams, is because the learned trial judge, having been satisfied that the 5th accused person was not present and thus rejected his identification by the 3rd and 4th P.Ws who between them, had also identified the 1st, 2nd, 3rd and 6th accused persons, could not have been satisfied beyond all reasonable doubts as to the participation of these four accused persons.

He also submitted that since the 2nd P.W’s identification of the 7th accused person was not believed, the learned trial judge could not have been satisfied beyond all reasonable doubt that the 2nd P.W. truthfully identified the 4th accused. It was also contended by learned counsel that since the identification of the 10th accused by the 1st P. W. did not satisfy the learned trail judge, this witness’s identification on the 1st, 2nd, 4th and 9th accused persons could not have been beyond all reasonable doubt; and indeed to the extent that these witnesses said they saw the seven accused persons participating in the crime, they could not have been speaking the truth. In the learned counsel’s submission, this point is all the more important when it is realised that in order to establish the defence of alibi, it is not necessary to prove the alibi beyond all reasonable doubt, it being sufficient to raise a defence based on balance of probabilities. In considering whether the learned trial judge could have been satisfied with the case against the accused persons, Chief Williams finally submitted that the nature of their defence which was that the prosecution witnesses lied against them, was material.

Mr. Gbemudu, the Ag. Director of Public Prosecutions, Mid-West State, who appeared for the respondent, in his reply submitted that it was open to the learned trial judge, after considering the totality of the evidence before him, to accept parts of the evidence of a witness and reject the other part. In saying that he was satisfied with the defence of alibi put forward by the 5th, 7th and 10th accused persons, argued Mr. Gbemudu, the learned trial judge was merely saying that the case against these accused persons had not been duly proved by the prosecution.

In regard to the submission of the learned counsel for the appellants, we would like to point out that, since they did not identify any of the three accused persons acquitted by the trial judge, the identification of the 4th, 8th and 9th accused persons by the 6th and 8th P.Ws, which the learned trial judge accepted could not be attacked on that score. Therefore, in so far as these three accused persons are concerned, the contention that the learned trial judge could not have been satisfied beyond all reasonable doubt cannot, in our view, be sustained.

We will now proceed to consider the submissions with respect to the conviction of the 1st, 2nd, 3rd and 6th accused persons. It is not disputed that the 1st P.W. not only identified the 10th accused but he also described in some detail the part he saw him play at Bethany-Ehao on the day the village was burnt and looted.

The 2nd P.W. who identified the 7th accused also testified that he saw him enter his wife’s room in the village and carry her box containing her wearing apparels and make away with it. The 3rd P. W. said he saw the 5th accused set fire to the house of his two wives while the 4th P. W. also testified that the apartment of his own wife was also set on fire by the 5th accused.

The onus is on the prosecution to prove its case beyond any reasonable doubt. If the judge has any doubt at all, he must give the accused person the benefit of that doubt. That being the case, it seems to us that when the learned trial judge in the instant case said that he was “satisfied with the defence of alibi” put forward by the 5th, 7th and 10th accused persons, he meant no more than that he was satisfied that, on the totality of the evidence before him, the prosecution had not proved beyond all reasonable doubt its case that these three accused persons were present and participated in the crime. In our opinion there is nothing special in the use of the word “satisfied” in such circumstances. It is not the particular words used that matter. It is the effect. See Rex v Kritz [1950] 1.K.B. 82 at p. 89 as further explained in R v Hepworth and anor [1955] 2 Q.B. 600 at p. 603.

There is one other point when the finding of the trial judge is looked at from the point of view of the defence. The standard of proof required to establish the defence of alibi is one based on the balance of probabilities.

Therefore, when the trial judge said that he was satisfied with their defence, he must be taken to mean (and there is nothing in the judgement to indicate the contrary), not that the prosecution witnesses were lying, but that on balance it was probable that the 5th, 7th and 10th accused persons were else-where on the day of the incident.

With regard to the evidence against the appellants, the learned trial judge was clearly satisfied, again on the totality of the evidence, that the prosecution had proved its case against them beyond all reasonable doubt. In fact, he stated unequivocally that he believed the evidence of the witnesses called by the prosecution. We agree with Mr Gbemudu that a trial judge can, under certain circumstances, accept part of the testimony of a witness and reject the rest.

Moreover, it is not impossible, particularly in a case where the identification of the accused person is crucial, for a trial judge still to have some doubt, on the totality of the evidence, as to the presence of that accused person at the scene of crime, despite the fact that he finds the prosecution witnesses truthful.

He may well feel, having regard to other equally convincing evidence, that the particular prosecution witness might have been genuinely mistaken as to the identification of a particular accused. With that feeling comes the doubt the benefit of which must be given to the accused as the learned trial judge did here to the 5th, 7th and 10th accused persons but that finding does not derogate from the finding in respect of the other accused persons whom he convicted.

For these reasons, we are unable to discern any merit in any of the points urged upon us. Having regard to the evidence which the learned trial judge rightly accepted, we cannot see any ground for interfering with the convictions and the appeals are accordingly dismissed. The convictions and sentences of the appellants are affirmed.

The concurrent sentences of imprisonment passed by the learned trial judge on the 2nd, 3rd, 4th, 6th, 8th and 9th accused persons are to commence on 4th February, 1970, the day they were remanded in custody by this court after their bail had been cancelled. Those passed on the 1 st accused person will commence on 6th February, 1970, the day on which he first appeared in this court.

SC.234/1969